27 November 2013
ALAW has responded to the Ministry of Justice consultation on reform of judicial review. Our response focused on three areas where we are concerned that proposals could impact negatively upon the ability of NGO’s to challenge unlawful decisions which impact negatively upon animal welfare. These areas are standing, third party interventions and protective costs orders (PCOs).
Whilst the proposals are likely to impact generally upon the ability of individuals and groups to challenge the decisions of public bodies across a wide range of areas, we are particularly concerned that reforms could be disastrous for animal welfare, since animals have no standing and are wholly reliant upon concerned groups and individuals to challenge decisions by public bodies which unlawfully compromise their welfare. If it becomes difficult for those groups acting altruistically to bring proceedings this will effectively close off an important avenue for animal protection. ALAW has therefore expressed concern about any proposals that would amount to a restriction upon the rules relating to standing (which determine who has the right to bring proceedings on behalf of others).
For similar reasons, ALAW expressed concern about modification to the rules on intervening in actions, which would reduce the opportunity for intervening when a point of public importance arises, or make the costs of intervening prohibitive.
Another area where ALAW believes that reform may discourage animal welfare groups from bringing public law challenges is the court’s power to make a Protected Costs Order (PCO). A PCO ‘shelters’ an NGO from the fear of having to meet a disproportionately high bill for the other side’s legal costs if it fails in its action and the court orders it to pay costs. By making such an order the court seeks to avoid the risk that issues of public importance will not be aired because of a legitimate concern by an individual or groups that it may have to meet an unaffordable costs liability. The Government has suggested that PCO’s might become unavailable for non-environmental cases (which it has to make provision for under the Aarhus convention), however we believe that similar considerations apply to cases concerning animal welfare, where animals also lack standing to bring proceedings in their own interests. Without the recourse to a PCO we believe that challenges would in many cases simply be too expensive to be brought.
The effect of these changes together and in isolation cannot be under-estimated. There is a real prospect that animal groups will face insurmountable obstacles to bringing judicial review challenges in the future. ALAW will be contacting MP’s about this issue and will continue to engage in further consultation about the proposed reforms.