MoJ plans for judicial review reform face sceptical response from lawyers
The Ministry of Justice (MoJ) is to reform the judicial review process in an attempt to reduce the number of "weak or ill-conceived cases" the Government says are clogging up courts, with the news greeted with a sceptical response from the legal profession. In today's announcement, Justice Secretary Chris Grayling said: "Judicial Review is an important way to hold authorities to account and ensure decisions are lawful. However there has been a huge growth in the use of judicial review, far beyond what was originally intended.
November 19, 2012 at 12:22 PM
5 minute read
The Ministry of Justice (MoJ) is to reform the judicial review process in an attempt to reduce the number of "weak or ill-conceived cases" the Government says are clogging up courts, with the news greeted with a sceptical response from the legal profession.
In today's announcement, Justice Secretary Chris Grayling said: "Judicial Review is an important way to hold authorities to account and ensure decisions are lawful. However there has been a huge growth in the use of judicial review, far beyond what was originally intended."
Grayling (pictured) said the number of applications received had risen from 160 in 1975 to 11,200 last year, with only one in six applications granted permission to be heard in 2011. The MoJ said it would look to reduce the number of "ill-founded" judicial review applications, allowing others to be "dealt with swiftly and effectively".
"The Government is concerned about the burdens that ill-conceived cases are placing on stretched public services as well as the unnecessary costs and lengthy delays which are stifling innovation and economic growth," said Grayling.
At an address to the Confederation of British Industry this morning, Prime Minister David Cameron linked the move to minimising delays to contract approval and economic growth. "This country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every 't' and dotting every 'i' – and we need to throw everything we've got at winning in this global race," he said.
The Government will consider measures including shortening the length of time following an initial decision that an application for a judicial review can be made, reducing the number of opportunities currently available to challenge the refusal of permission for a judicial review, and reforming the current fee structure to cover the costs of providing judicial review proceedings.
Commenting on the proposals, Herbert Smith Freehills dispute resolution partner Nusrat Zar said: "The Government will need to bear in mind EU law, in particular the Aarhus Convention (AC), which provides for access to justice in environmental cases. The access to justice provisions in the AC mean that those who cannot easily pay court fees may have to be excluded from the fees obligation."
She added that the AC had led the MoJ to introduce changes to the award of protective cost orders, which allow claimants to start judicial reviews without the risk of having to pay defendants' legal costs if they lose.
"This change may well cause a growth in judicial reviews which outweighs any reduction in judicial reviews through the MoJ's other planned measures," said Zar.
Monckton Chambers' Paul Lasok QC also sounded a note of caution at the Government's announcement.
"Judges are very, very attentive to the need to let through the permission stage only those claims that are arguable and I don't quite know what they really think they will do that will improve that side of things," said Lasok.
"I think there is a different question entirely regarding what the PM was talking about, in terms of getting large scale projects approved. That's part of a much more significant policy question about how we structure our planning control regime, which is more time-consuming than in other countries, but that's a much broader problem."
"When parliament enacts legislation, the Government has to comply with it just like everyone else. Where Government exercises a discretion, the courts aren't concerned in judicial reviews with dotting every 'i' and crossing every 't'. Judicial review applies only in very extreme circumstances, where the exercise of discretion is outside what any reasonable person would do. There are all the protections the Government would want in the review process."
Paul Dacam, head of EU public Law and policy at Hogan Lovells, commented: "This appears to be aimed at apparently unmeritorious challenges by environmental groups and the like which Government claims hold up large infrastructure projects to the detriment of business and economic recovery generally. It ignores the fact that the vast majority of judicial reviews are still asylum and immigration cases and that it is these that are likely to be affected most by increased costs and shorter time limits."
"It seems entirely questionable that the proposals will achieve their apparent intentions and there may be unintended adverse consequences. In particular if the already tight limitation period for a claim (promptly or in any event within three months) is shortened it would mean there is unlikely to be any prospect of pre-action settlement negotiations between the parties. This could increase rather than decrease the number of JRs."
Writing on the UK Human Rights Blog, 1 Crown Office Row barrister Adam Wagner added: "Lawyers will be very concerned indeed about this. The wartime analogy is also somewhat depressing. During wartime, the state becomes more authoritarian as it is focused on a single existential threat. Niceties of rights protection and civil liberties tend to be suspended. Nobody could seriously want this to apply because we are facing the real but certainly not existential threat of a recession."
- For more, see A war on Judicial Review?
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