Update | Judicial review: Is it really to blame for delaying economic growth?

Here is a question for your firm's Christmas quiz. Who said: 'Proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.' Was it: (a) the former law lord Tom Bingham in his seminal book The Rule of Law; (b) Shami Chakrabarti of Liberty; or (c) the coalition government two years ago?

The answer is (c) (see the November 2010 consultation paper on legal aid reform). Not an obvious answer when you wind forward two years to the prime minister's speech last month to the CBI's annual conference. There he announced that a key part of the coalition government's plans 'to help British business thrive' would be 'cutting back on judicial reviews' because of the increase in judicial review claims. Judicial reviews slow down the pace of government decision-making, he said, and because 'let's face it: so many are completely pointless'.

According to a subsequent Ministry of Justice press release, this cut back is to be achieved not by improving the quality of public bodies' decision-making, but by hiking up court fees, shortening time limits, and limiting the scope for claimants to challenge refusals to grant permission.

The logic of the prime minister's attack on judicial review is not difficult to pick apart. Fewer judicial reviews will not stimulate economic growth, save perhaps if there are fewer judicial reviews of planning decisions. However, judicial reviews of planning decisions by members of the public are already rare because the costs regime is so unfavourable to claimants, while few businesses will be deterred from bringing judicial review challenges to planning decisions simply by fee rises and shorter time limits.

The rise in recent years in judicial review claims comes exclusively from those cases categorised as 'asylum and immigration' claims, claims which have no obvious impact in holding back economic growth. Whereas between 2006 and 2011 the number of non-asylum and immigration judicial review claims has remained constant (2,228 in 2006 compared with 2,213 in 2011).

If the aim is to reduce the number of unmeritorious claims, then cutting time-limits for bringing claims will be counter-productive as it will limit opportunities to engage in pre-action correspondence and to obtain considered pre-action advice.

As for increasing fees, this will have little impact on asylum and immigration claims as these are either funded by legal aid or, as will be increasingly common from April 2013 next year when the current round of legal aid cuts kicks in, brought by litigants in person who are entitled to fee remissions.

Instead, the fee rises will simply make it even more difficult for the 'squeezed middle' (whose interests all the main political parties claim to represent) to bring judicial review claims, even if they are seeking to challenge decisions which the coalition government would appear to accept ought to be subject to judicial scrutiny '“ for example, unlawful failures to provide services to children, the elderly or the disabled.

A cost-effective approach

Another target for the prime minister in his CBI speech was consultation. 'You know the story. The minister stands on a platform like this and announces a plan then that plan goes through a three month consultation period. There are impact assessments along the way and probably some judicial reviews to clog things up further. By the time the machinery of government has finally wheezed into action, the moment's probably passed'¦ When we came to power there had to be a three month consultation on everything and I mean everything, no matter how big or small. So we are saying to ministers: here's a revolutionary idea'¦ if there is no need for a consultation, then don't have one.'

While it may be a good sound bite, the suggestion that the coalition has been obliged until now to consult on 'on everything' is simply not right. There is no general duty to consult.
Instead, a duty to consult arises only where there is a statutory requirement to consult (for example, in relation to the reconfiguration NHS services, see section 242(1B) National Health Service Act 2006), or where the public body in question has created a legitimate expectation that there will be consultation and it would be unfair to permit that public body to resile from that promise (for example, where the government stated in a White Paper that there would be 'the fullest public consultation' on future nuclear policy: R (Greenpeace) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin)).

When the coalition government was formed in 2010 it inherited the Cabinet Office's Code of Practice on Consultation. The code did not create duty to consult, it simply provided guidance on how to conduct a consultation when it was determined ?that a consultation was necessary.

Amongst other things, the code provided that when a consultation was carried out it should normally last at least 12 weeks (because 'this will help enhance the quality of the responses' and because 'many organisations will want to consult the people they represent or work with before drafting a response'). The fact that the coalition government would prefer a more flexible approach to how consultations are carried out is old news, the code having been withdrawn earlier this year and replaced by the Cabinet Office's Consultation Principles document which is less prescriptive in its recommendations as to how consultations should be carried out.

There is nothing objectionable per se about such flexibility, provided that the consultation process remains a fair one. What is fair? Well, the classic formulation is that the consultation must be held at a time when the proposals are at a formative stage, sufficient information must be provided about the proposals and the reasons for them to permit an informed response, consultees must be given sufficient time to respond, and responses must be conscientiously taken into account (R. v Brent LBC Ex p. Gunning [1985] 84 LGR 168 as set out in R v North East Devon HA ex parte Coughlan [2001] QB 213).

The difficulty with short consultation response periods, or consultations which are targeted only at particular stakeholders, is that they risk being unfair, in particular by discriminating against particular groups.

As to the more general attack on consultations as being an unnecessary impediment to policy- making, one ?suspects that there will have been a few ?wry smiles even amongst members of the CBI who listened to the prime minister's speech based on their experiences of the quality of civil service and ministerial decisions taken without sufficient input from those at the coalface.

Of course public consultations are not the only mechanism for obtaining such input. However, compared to other options such as commissioning external consultants to produce reports, consultation exercises are capable of offering excellent value to the taxpayer. In particular, for every slightly bonkers response, there will be a response from an individual or organisation with a high level of expertise in the relevant policy area who (at no charge to the taxpayer) will have put a lot of time and effort into compiling cogent and informed submissions which, if listened to, will help policy-makers to take the right decisions first time around.

Duty of sufficient inquiry

There is also a risk of losing sight of the fact that while there is no general duty to consult, there is a general common law duty of sufficient inquiry, often referred to as the Tameside duty after Lord Diplock's speech in the case of that name. 'The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?' (Secretary of State for Education and Science v Tameside Borough Council [1977] AC 1014 at paragraph 1065B).

Absent a duty to consult, the Administrative Court will generally say that it is up to the decision-maker to decide on the manner of inquiry. However, one of the dangers of expedited policy decisions is that there is simply no inquiry at all.

With this in mind, it is ironic that in ?his speech the prime minister held up Michael Gove MP as an exemplar of his proposed approach ('If you can get it done properly in a fortnight, great, indeed the Department for Education has already ?had a consultation done and dusted in ?two weeks').

That is because Mr Gove's decision to summarily terminate the Building Schools for the Future programme provides a textbook example of knee jerk policy-making carried out without any consultation, resulting in an ill-formed and crude macro policy decision which was held to be unlawful because it created obviously unfair anomalies once Mr Gove's civil servants attempted to implement it (R (Luton BC, Nottingham CC, Waltham Forest LBS, Newham LBS, Kent CC and Sandwell MBC v Secretary Of State For Education [2011] EWHC 217 (Admin)).