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Reviewing judicial review

19 November 2012
After a spate of high profile judicial review challenges to Government decisions, including five up-coming challenges to High Speed 2, David Cameron this morning outlined plans aimed at reducing the number of such challenges.  The Prime Minister told the Confederation of British Industry (CBI) that: 

So many [judicial reviews] are completely pointless. Last year, an application was around 5 times more likely to be refused than granted. We urgently needed to get a grip on this. So here’s what we’re going to do. Reduce the time limit when people can bring cases. Charge more for reviews, so people think twice about time-wasting.  And instead of giving hopeless cases up to four bites of the cherry to appeal a decision, we will halve that to two.

Although the proposals have not yet been developed, Mr Cameron seemed to suggest that the aim behind the proposals was to reduce the number of challenges in order to "speed up" the process of Government, and that this would be in the interests of business.  However, while it is quite right that the number of judicial reviews has increased (Mr Cameron described judicial review as being "a massive growth industry in Britain today", and gave figures to prove it), it is not so clear that the proposed steps are justified or that they will have the consequences for business that Mr Cameron suggested.

First, the vast majority of judicial reviews are not brought against decisions that affect business, but against immigration and asylum decisions.  According to the Ministry of Justice report, "Judicial Court and Statistics 2011", of the 11,200 applications for permission to apply for judicial review last year, 8,649 – that is, over three quarters of all judicial reviews – related to immigration and asylum.  Of the remainder, only a small proportion relates to commercial decisions, and the success rate for these is higher.  It is not, therefore, commercial judicial reviews that "clog things up" or that mean that "government can still be far too slow at getting stuff done".

Secondly, judicial review procedural requirements mean that it is – certainly compared to standard commercial litigation – a relatively streamlined and efficient process.  While it is well-known that there is a significant backlog in the caseload of the Administrative Court, that is not to say that the judicial review process itself is flawed.   The current "promptly and in any event within three months" time limit is already short, forcing applicants to move quickly to bring their claim, but any further reduction as suggested may leave little for parties to engage in discussions to resolve the matter without proceedings – directly contrary to the exhortation to parties to avoid litigation if possible, embodied in the pre-action protocol for judicial review.  The absence of standard document disclosure and oral testimony limits the paperwork for the parties and for the court.  Most importantly, the permission stage, at which applicants must satisfy the court that they have an "arguable" case, is a vital and effective way of weeding out the "pointless" claims to which David Cameron referred.  Of the 11,200 cases referred to above, only 1,220 were granted permission to proceed to a substantive hearing.  Of that number, only 396 were determined by the Court, perhaps because the airing of arguments at the permission stage encourages settlement without the need for a full trial.  It is therefore questionable whether the Government needs to "get a grip" on the current state of judicial review.

In any event, reducing time limits, increasing charges and limiting appeal rights for judicial review will not be achieved without overcoming significant legal difficulties.  Judicial review is a key way in which the UK complies with the access to justice requirements that are enshrined in Article 6 of the European Convention on Human Rights.  Furthermore, the Aarhus Convention imposes specific requirements in relation to environmental cases, stipulating that the UK must ensure that members of the public have access to administrative or judicial procedures to challenge decisions that contravene environmental law, and that such procedures provide adequate and effective remedies and are fair, equitable, timely and not prohibitively expensive.  Any changes that have the effect of restricting access to justice are in very real danger of breaching these requirements and could themselves be subject to judicial review.

More generally, of course, whether a judicial review relates to an immigration case or a commercial case, a foreign policy decision or a contract award, those are decisions that affect people's lives and livelihoods.  They should be made properly.  And it is vital that there is an effective means of checking the way in which those decisions are made – and giving the Court the power to require them to be re-made.  The legal tests for judicial review are difficult ones to satisfy, but there are plenty of cases where that has been done.  Mr Cameron himself accepted that the Westcoast mainline case (in which the Government admitted to having discovered "significant technical flaws in the way the franchise process was conducted") was a well-founded judicial review.  Even if, as Mr Cameron suggested, some cases are brought as a "time-wasting" tactic, many more cases are based on a very real complaint with significant decisions that often affect the lives of many people.  Any steps to curtail the ability of affected parties to appeal those decisions should be considered very carefully. It is in everyone's interests, including that of the Government itself, that the robustness of public decision-making is secured, and judicial review plays a crucial role in achieving that. 

In any event, even if it could be shown that the judicial review process was in need of reform, or that such reform could comply with requirements relating to access to justice, there is a serious question as to whether David Cameron's proposals as to fees, timing and appeals will have the desired effect.  An increase in fees (currently £60 to apply for permission, and £215 to bring proceedings once permission has been granted) is of itself unlikely to prevent most businesses from initiating judicial review proceedings.  Similarly, a reduction in the time limit will not dissuade businesses from bringing challenges – particularly to commercial decisions of significant value.  Finally, although Mr Cameron referred to hopeless cases having up to four bites of the cherry to appeal a decision, an ongoing legal process does not necessarily stall the practical process of implementation of the decision in question.  In particular, the launch of judicial review proceedings does not, of itself, automatically stay the decision that is the subject of the challenge.  To do that, a claimant needs to obtain a separate court order, which is difficult to obtain and requires the claimant to show, among other things, that they have a meritorious case. 

Not only is it, therefore, questionable whether these proposals can be introduced and whether they will meet the apparent objectives, it is also possible that they will have undesired consequences.  In particular, moves to reduce the time limit for bringing judicial review are likely to lead to claims being less well-formulated (and therefore harder to respond to), and to reduce parties' ability to resolve the dispute before proceedings have to be launched.  Together, changes to the time limit and to the fees for bringing proceedings are most likely to affect individuals who do not have the resources or experience to mount expensive legal proceedings with limited time available to them.  Those consequences must, surely, be unintended ones.

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