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11 MAR 2013

Next steps in reforming judicial review

How it began

Just before Christmas, the Prime Minister announced that it was time to wage a war on red tape and anything else that holds back British business. One of the battlefronts is judicial review - the Government sees it as a time consuming and resource-heavy process, which can delay large-scale developments and get in the way of delivering policy.

In between the Prime Minister's announcement and the subsequent publication of the proposals, public lawyers were anxious about the scope of the Government's plan, and the evidence that might be relied on. In a sense, this anxiety proved to be misplaced:

First, the scope of the proposals was limited as they focused on reducing the time limit in procurement and planning cases, restricting the right of oral renewals in some circumstances, and a modest increase in issue fees.

Secondly, the evidence base was even more limited with the main source of evidence being figures that showed the kind of judicial review cases that might affect business have stayed at a constant level for many years.

The consultation period

Throughout the brief consultation period - which neatly covered the Christmas holiday period - legal commentators were quick to point out: (1) that judicial review is a vital process for holding the Government to account; and (2) the evidence-base for the proposals is virtually non-existent, apart from a small amount of anecdotal evidence.

These points were reflected in the consultation responses of the Administrative Law Bar Association, the Bingham Centre for the Rule of Law, the British Institute of Human Rights, British Irish Rights Watch, Child Poverty Action Group, the Equality and Diversity Forum, the Equality and Human Rights Commission, Medical Justice, Northumbria Public Law Research Group, Reprieve, The Bar Council, The Law Society and the University of Cambridge*. With each of these authoritative bodies taking such a uniform and principled stand, the Government will have to think carefully about its response.

Can the objections be met?

It is likely that the Government will be able to produce some evidence to demonstrate the costs of judicial review. It will simply need to conduct more research and present the data in a way that is favourable to its desired policy outcome. The Government should also be able to counter the principled arguments about the importance of judicial review by showing that meritorious cases will not be filtered out of the system. In doing so, the Government may be able to sidestep a majority of the objections made the proposals.

However, the Government will be less likely to overcome the real problem - the proposals themselves. For the most part, they either do not make sense or fail to appreciate the true dynamics of judicial review proceedings.

First, the proposal to reduce the time limits in procurement and planning judicial reviews to 6-weeks (with a discretion to extend) is unlikely to achieve the aim of fewer judicial reviews. Instead, potential claimants will be encouraged to issue proceedings hastily in order to protect their position (it can take some time for claimants to arrange litigation funding). This undermines the role of the pre-action protocol, which is designed to prevent unnecessary claims.

Secondly, the proposal to restrict the right to an oral renewal is very difficult. It would either be engaged: (1) where there has been a "prior judicial hearing of substantially the same matter" or (2) if a case is deemed to be "totally without merit" on the papers. The first formulation would be unlikely to catch many cases as judicial review cases, by their nature, raise entirely new points because a decision-making process has gone wrong. The second formulation is already available to judges when they make observations in refusing permission and is usually only used in relation to immigration cases (which are soon to be transferred to the tribunal service). However, it is less likely to be used if such a designation will mean a claimant loses an important procedural right - and correcting an error by a judge will involve a trip to the Court of Appeal, which is disproportionate and wasteful.

Thirdly, the proposal to introduce a new fee for oral renewals is partly based on giving the claimant a "financial incentive" in the proceedings and presumably acting as a gate-keeping function. This overlooks how judicial review works: in legally aided cases, individuals have no financial incentive and this would not change; in privately funded cases, claimants already have a huge financial incentive which is the prospects of paying the defendant's costs if they lose.

These are the key planks in the Government's reform agenda but, in their own terms, do not stand up to scrutiny.

Where next?

If the Government is serious about changing the judicial review process it will need to do more work on the detail of its proposals. However, it may be that the Government decides to quietly shelve these ideas - making changes to judicial review is not a top priority for many voters and taking these ideas forward could take a great of time and effort for relatively little gain.

The Ministry of Justice has recent experience of shelving its work - the Report of the Commission on a Bill Rights has sunk with little or no trace. Time will tell if the changes to judicial review will follow suit.

* Extracts from these responses are collected at: http://ukhumanrightsblog.com/2013/02/02/governments-war-on-judicial-review-panned/

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