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Judicial review reforms – Nov 2013

Since December last year the Government has been seeking to reform the process for bringing a judicial review claim.  Judicial review is an important right by which individuals or organisations can challenge decisions made by a public body.  There have been fears, however, that the process is being over-utilised, even abused, with figures showing that the number of applications rose from 6,692 in 2007 to 11,359 in 2011, whilst success rates have remained low with many applications failing at the first hurdle.  Even applications that fail can be a costly and time-consuming exercise for those involved and for the public purse.

It is with this in mind that the Government announced, at the end of last year, its intentions to reform the process to filter out weak, frivolous and unmeritorious cases at an early stage, while ensuring that arguable claims can proceed to a conclusion without delay.  The responses to that first consultation were published in April 2013.  In September 2013 the Government then issued a further consultation seeking views on further key areas.  This consultation closed on 1 November.

Proposals going forward from the first consultation

The reform proposals taken forward (despite a largely negative response to the consultation) were:

  • halving the time limit for applying for a judicial review of a planning decision from three months to six weeks and reducing the time limit for applying for a judicial review of a procurement decision from three months to four weeks
  • banning people from seeking a hearing in person if their initial written application has been ruled as totally without merit
  • introducing a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.

The Government has also confirmed that it is still considering a separate proposal to increase the judicial review application fee from £60 to £235.

The first two reforms came into force on 1 July 2013 by an amendment to the Civil Procedure Rules.  The fee change will take effect as soon as practicable.

Reform proposals in the second consultation

The further proposed reforms seek to address three interrelated issues:

  • the impact of judicial review on economic recovery and growth.  Vital infrastructure projects and projects that matter to the economy in local areas can be delayed by unmeritorious and repeated challenges resulting in extra cost and risk
  • the inappropriate use of judicial review as a campaign tactic.  The Government is concerned that judicial reviews are being used as a means of generating publicity and prolonging campaigns after all proper decisions have been made
  • the use of the delays and costs associated with judicial review to hinder actions the executive wishes to take.  The Government is concerned by the use of unmeritorious applications for judicial review to delay, frustrate or discourage legitimate executive action.

The proposals of most interest to the leisure and culture sector are:

Standing

A person or organisation can only bring a claim for judicial review if they have ‘standing’; that is, a ‘sufficient interest’ in the subject matter of the claim.  The Government is concerned that this is defined too widely, allowing judicial reviews to be brought by individuals or groups without a direct and tangible interest in the subject matter of the claim, sometimes for reasons only of publicity or to cause delay.  It wants to revise the test for standing so that only those with a more direct and tangible interest can apply for judicial review (thereby cutting out campaigning groups).

Procedural defects

One of the grounds for judicial review is procedural irregularity, i.e. that the decision-maker failed to follow the correct process.  This ground has been used a lot in cases where there has been breach of a local authority’s statutory duty to consult.  The courts do have a discretion to dismiss a judicial review claim brought on this ground, if there is an argument that following the correct procedure would have made no difference to the decision.  However, the courts can be reluctant to exercise this discretion.

The Government is consulting on two options: allow the ‘no difference’ arguments to be made at an earlier stage of the proceedings, at the permission stage; or (and this seems to be the preferred option) introduce a new, lower, threshold to judge whether a claim based on a procedural flaw can be dismissed – for example, ‘highly likely’ that the decision would have been the same had the correct procedure been followed.

Public sector equality duty

In a similar vein to the procedural defects proposals, the Government wants to know if judicial review is the correct way to bring a claim for a breach of the public sector equality duty (which is the duty on public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities).  Often even when a decision is challenged on the basis that ‘due regard’ was not had, the decision is retaken and the same conclusion is reached.  The consultation asks for suggestions for alternative mechanisms to enforce the duty.  See our article on the public sector equality duty review for more detail.

Comment

Although the vast majority of judicial review applications relate to immigration cases, the commercial benefits of speeding up the process, particularly in the context of planning or procurement cases, is obvious.

However, potential applicants will have to move more quickly than ever when it comes to issuing judicial review applications and they will have to ensure that, despite extremely tight deadlines, their applications are well prepared and clearly demonstrate merit.

Otherwise there is a real risk that the reforms could have the unfortunate ‘double-whammy’ counterintuitive effect of increasing the number of ill-thought out and incomplete protective applications, which will clutter and slow the system.

On the other hand, a narrowing of the test for standing will mean that public authorities are less open to claims from pressure groups.  Lowering the ‘no difference’ test in relation to procedural defects may also mean that claims over a failure to consult can be more easily dismissed.