Workshop: Rationing judicial review

The prime minister told the Confederation of British Industry on 19 November that “this country is in the economic equivalent of war today, and we need the same spirit”. The weapons of war would apparently include reform of judicial review procedure.

This was a speech heralding significant reform to one of the major institutions of our legal system, one of the principal methods by which public bodies are held to account, and it was addressed to the CBI rather than, say, parliament. Such are the politics of the present. If you were being cynical you might think that the prime minister intended a headline-grabbing initiative, rather than a genuine examination of the machinery of judicial review.

Nevertheless this announcement should be taken seriously, not only because of the slightly alarming war-time analogy, but also because like previous governments, this one apparently believes a little bit of change in some area of the law or other will free up economic growth. There might be an opportunity here to look at the way in which judicial review works, and see if it can be improved, but that does not seem to be what the government’s agenda is about.

On the same day as the prime minister’s speech to the CBI, justice secretary Chris Grayling stressed the important role of judicial review in holding government to account – the West Coast Mainline debacle is an obvious example – but singled out the particular vices of the system which he intended to deal with: unnecessary delays, and “the weak or ill-conceived cases which are submitted even when the applicant knows they have no chance of success”.

The government’s proposals, which will be subject in the near future to a “public engagement process” rather than a consultation exercise, include: shortening the time limits to bring judicial review claims; reducing the number of opportunities to challenge the refusal of permission for judicial review; and increasing the current fees.

The MOJ say that there were 11,200 applications in 2011; only one in six applications were granted permission to seek judicial review. But immigration and asylum matters, rather than challenges to commercial projects, account for the vast majority of judicial review cases. A written answer from the MOJ to a question tabled by Frank Dobson MP discloses that in 2011 only 191 applications were planning-related, being two per cent of the overall number, and nine per cent of the ‘non-asylum‘ applications. Moreover, a third of planning-related judicial review applications were given permission to proceed, which was a higher proportion than any other category. Where, you might ask is the government’s evidence that growth is being stunted by excessive judicial review?

Current experience is that in the Administrative Court it can take from nine months to a year, from a claim being lodged, to a substantive hearing, regardless of whether the claim is made on the first or last day of the three month period (or six weeks for certain statutory challenges). The courts are very busy, and greater resources are not being directed to them to deal with the obvious delays in ?the system.

The judges of the Administrative Court and the Court of Appeal are already very careful to grant permission for judicial review only where claims pass the threshold of ‘arguability’. It is unlikely that unmeritorious claims are getting through in any number.
The converse may in fact be the case: applications which ultimately led to the development of the law were often the sorts which would be refused permission in the High Court, precisely because they raised new points of law.
If the government intends that there will be only one chance at the High Court level to obtain permission for judicial review, and one further chance in the Court of Appeal, more cases are likely to end up in the Court of Appeal, as the last throw of the dice. Alternatively, if the only two chances to gain permission will be in the High Court, the High Court’s workload will not be eased.

Increasing court fees might conflict with the UK’s treaty obligations to ensure access to justice where the environment or human rights are the issue. The Aarhus Convention has led to the widespread use of Protective Costs Orders in environmental cases, limiting the likely costs of exposure of applicants, to enable them to bring environmental cases in the first place.

A recent Ministry of Justice report recommended that where a PCO was granted, the usual order should be to limit a claimant’s costs liability to £5,000. The number of environmental challenges brought is therefore unlikely to reduce. Increased court fees may not be compatible with Aarhus.

The government’s particular concern appears to be major infrastructure projects, and delays caused by judicial review challenges. The consenting regime for such projects, under the Planning Act 2008, already requires legal challenge to be made within six weeks, as with challenges to planning permissions generally.
In judical review, the civil procedure rules require parties to engage with each other before claims are brought. If the time limit is materially shorter than three months, it is hard to see how much meaningful pre-action engagement or negotiation can take place, meaning that claims are more likely, and early concessions from public bodies less likely. It is unclear how much the government has actually considered these issues.

If the government wants to restrict the number of judicial review applications then it might consider raising the threshold for permission from “arguability” to “a real prospect of success”, although that does not appear in the proposals.
But the government’s focus of attention here is on economic growth, and there is little evidence that unmeritorious judicial review claims are holding the economy back. Indeed the MOJ’s own statistics suggest that planning and infrastructure JR claims tend to be relatively more successful.

Note:

The MOJ published a detailed consultation document on 13 December 2012, which develops many of the issues referred to in the above article.