Judicial review: prompt and prompter

By Kerry Underwood

The new time limit for challenges to planning decision could have a dampening effect on claims, but, more likely, it will encourage more applications on a precautionary basis - and that's just one of the paradoxes on the new rules governing the judicial review process, says Kate Olley The government has recently driven a small tsunami wave through the judicial review process, anxious to wash time-wasting or cynical claims out of the system. It would appear there is now to be a second, deadlier wave. While the first round of reforms focused on tightening up perceived procedural defects, this second tranche probes much deeper, lapping at the foundations of judicial review concepts which have been carefully evolved over time through the case-law. In the government's words, there has been a “worthwhile first step in rebalancing the use of judicial review.” It now says it is “right to test the potential for further, substantive, reform which seeks to restore and secure judicial review to its proper place as a check on unlawful executive action”. No campaign tool An eight-week consultation has been launched seeking views on proposals in a number of key areas, including stricter conditions for claims brought on the basis of a “minor procedural defect” and a new test for standing.   The tight 1 November 2013 deadline is justified by the statement that “more effective use of judicial review” is a key part of the government's programme to tackle public burdens, promote growth and stimulate economic recovery. It is once more stated that the proposals are intended to act as a disincentive to “those considering judicial review whose cases have no merit” while helping to speed up those cases that proceed. The government is very keen to emphasise that only a small proportion of judicial review applications reach a final hearing. Of course, this may actually mean that the system is working quite well. The whole point of the filter permission stage in judicial review is to ensure that only the meritorious cases move forward. Stepping directly into the judg';s chair, the government criticises the wider approach which has been taken to standing, referring to claims brought by individuals or groups without a direct and tangible interest in its subject matter, “sometimes for reasons only of publicity or to cause delay” and whose interest “is essentially a political one”. The government's concern is that the sufficient interest test has become too low a hurdle so that a strong public interest can on its own provide standing.   Corresponding questions are raised in the consultation paper about the scope for third-party intervention in judicial reviews and whether the courts have upset the balance in their awards of protective costs orders subsequent to the Corner House case. The paper strongly hints at a desire for the complete removal of PCOs in non-environmental claims so that judicial review cannot be used as a “campaign tool”. It is highlighted that those claims brought by claimants without a direct interest in the matter at hand have tended to be relatively successful compared to other JR cases. It is perhaps hard to see in that case how the data supports the stated fear that “the wide approach to standing has tipped the balance too far, allowing judicial review to be used to seek publicity or otherwise to hinder the process of proper decision-making”. It is declared that the concern “is based on the principle that parliament and the elected government are best placed to determine what is in the public interest.” Political attack There may be much to be welcomed in the new proposals, such as the possibility of extending the scope of leapfrog appeals, but there remain worrying elements which present as a further political attack on ordinary citizens' rights to challenge the power of the State. Much lip-service is paid to judicial review being a “critical check on the power of the State” but the 'rebalancing' proposal appears to be very much in the defendant's favour. It states, for example, that judicial review “is a crucial means of holding government to account, but the proposals we are putting forward are...squarely in the national interest”. Thus, on their own face, the proposals seem profoundly undemocratic. The government's foot is on the pedal, but democracy is slow- sometimes frustratingly slow for those in power or those wishing to move ahead with projects that will affect large numbers of people. The many references in the consultation paper to “proper decision-making” appear chauvinistic and unaccommodating of dissenting or minority views. The stated aim of the proposed reforms is to reduce the “burden that the growth in unmeritorious judicial reviews has placed on stretched public services while protecting access to justice and the rule of law” but coming at the same time as the so-called “gagging law” limiting campaigning in the year before elections, the proposals beg the question whether money and political convenience is winning out over access to justice.      Kate Olley is a barrister practising from Landmark Chambers (www.landmarkchambers.co.uk)