Further proposed changes to judicial review

The Criminal Justice
and Courts Bill is due
to undergo the report stage in the House of Lords at the end of the month. The Bill incorporates changes posited in the Ministry of Justice’s ‘Judicial review: proposals for further reform’ consultation, carried out last autumn. It follows a previous round of changes implemented by revisions to part 54 of the
Civil Procedure Rules in July.

Among the many controversial aspects of the
Bill are provisions which would have the effect of limiting the availability of remedies in judicial review cases, by amendments to section 31 of the Senior Courts Act 1981. The changes included within the Bill are concerned with the court’s decision making where an error of law has been found.

First, the applicable threshold for the refusal of relief would
be altered. The change would require judges to refuse relief where there has been a proven error of law, and it is judged that the decision under challenge might have been different had that error not occurred, by lowering the threshold for the application of the no difference test from ‘inevitable’ to ‘highly likely’ (R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344).

Second, the alteration of the threshold has been combined with removing the court’s discretion. So, where it is found to be highly likely that an error
of law would have made no difference to the decision in question, the court would be directed to refuse relief.

Last, the current informal arrangements for considering remedies at the permission
stage in judicial review would
be formalised. The court would be required to consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, whether that matter is raised by the defendant or of the court’s own motion.

The rationale

In 2013, the government said that it considered the following: “Judicial review can too often
be used to delay perfectly reasonable decisions or actions. Often this will be part of a campaign or other public relations activity and the judicial review will be founded on a procedural defect rather than
a substantive illegality. The government is considering strengthening the law and practice to enable the courts
to deal more swiftly with applications where the alleged flaw complained of would have made ‘no difference’.”

Consultation responses to the changes indicated a widespread disquiet at the proposals. The government’s response to the consultation said: “In a case where the defect complained of is highly unlikely to have made a difference, any remedy the court awards will also be unlikely to make any substantive difference to the outcome. Therefore, the government’s position is that judicial reviews based on failures highly unlikely to have made a difference are not a good use
of court time and money.”

Proposals’ impact

Concerns about the impact
of the proposals remain.
The existing approach is relatively straightforward to apply in practice. The threshold as altered is quite different, in that there will be situations where there
is ‘some likelihood’ that the decision would have been different but for the error, and the court would be required to consider just how likely that is.
It is to be expected that a court would need to be appraised of all the details of a case in order
to arrive at a safe conclusion. That could well lead to longer and more complex permission hearings and greater difficulty avoiding consideration of the merits of decisions under challenge. SJ