The Government Versus Judicial Review

Judicial review has been something of a growth industry, but this seems to be one industry that the Government does not want to encourage.  The Prime Minister, speaking to the CBI in 2012, was critical of the volume of judicial review, which was depicted as hindering economic recovery, and hoped to bring about a reduction in “completely pointless” judicial review claims.  His Secretary of State for Justice, Chris Grayling, proceeded to take up the ball and run with it.  A short consultation was followed by the Government’s response in a statement to the Commons on 2 April 2013, resulting in amendments made to the Civil Procedure Rules through a statutory instrument in June (SI 2013/1412).  Recently, the Government has come back for a second bite, with clauses in the Criminal Justice and Courts Bill that has been introduced this month (February).

Certainly the growth in judicial review is striking.  The judicial statistics for England and Wales tell us that numbers of applications grew from 533 in 1981 to 6458 in 2006 to 12,435 in 2012.  Interestingly, the rates of leave or permission being granted have fallen quite markedly – from 58% granted in 1966 to 22% in 2006, and lower still in the last three years.  As the research by Varda Bondy and Maurice Sunkin (“Accessing Judicial Review” in [2008] PL 647) demonstrates, the reasons for the decline are not necessarily worrying, because they found evidence of more claims being settled or resolved after they had been filed, which may have left proportionately more of the less meritorious to proceed to the permission stage.  Government Ministers are no doubt justified in implying that some claims are spurious or tenuous, but at least the permission stage provides a filter to deal with these.  That said, it takes an average six to nine months for the permission stage to be reached and, if it is passed, a further nine to twelve months for a substantive hearing.

The slowing down of policy decisions is one of the Government’s gripes.  And again there is at least some justification for their views.  In Hong Kong, the decision to build an airport at Chek Lap Kok was taken in October 1989 and the new airport was opened in July 1998. To take but one instance affecting one locality in Britain, proposals for a new by-pass road for Aberdeen, first announced in 2003, were recommended by a public local inquiry and secured Ministerial approval in 2009.  However, an unsuccessful challenge before one judge, decided in 2011, was followed by an unsuccessful appeal to a bench of three and then another unsuccessful appeal to the Supreme Court, decided in October 2012, so that work will not commence until 2014 and will probably not be completed until 2018.  Of course the reasons for delay in this and other instances are often multiple, and may have as much to tell us about administrative stages and court processes generally as they tell us about judicial review.  It is no doubt important to have checks that government bodies are acting lawfully.  But there is also no doubt that sometimes campaigners are deploying applications for judicial review as tactical weapons, seeking to obstruct or delay, when essentially their argument is a political one (which they may have already lost) rather than a legal one.  Sometimes groups may even be filing claims with little or no prospect of success, simply to exploit publicity.  There again, perhaps occasional abuse of a process is simply a price to be paid for the virtues it provides.

Against this background, we should notice the changes already made, which came into effect in July 2013.  The most significant of these was on time limits: the general rule (that claims must be made “promptly, and in any event not later than 3 months after the grounds…first arose”) has been displaced for planning law cases (where it is to be 6 weeks instead) and for public procurement cases (where it is to be 30 days).  The changes may contribute to reducing costs and delays.  One suspects, however, that they may increase the number of claimants asking a judge to exercise discretion to allow a claim outside the shorter window.

Two other changes are likely (and designed) to decrease the judicial review caseload slightly.  If on considering the initial paper permission application a judge decides the claim is “totally without merit”, under the new rules the claimant loses the right to an oral consideration.  And a fee (£215) is introduced for oral reconsideration of the permission application (but the fee will be waived if permission is granted).  These are milder deterrents than the Government had earlier threatened.

However, the Government has returned to the fray with more controversial proposals.  In the Criminal Justice and Courts Bill, which is currently in its early stages in the Commons, a clause provides that courts and tribunals should refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is “highly likely” that the outcome for the applicant “would not have been substantially different if the conduct complained of had not occurred”.  This proposal is of a different order, and is thoroughly objectionable.  Its terms betray a misunderstanding of the nature of judicial review, which is directed to the lawfulness or otherwise of activity, and a failure to appreciate its constitutional role.  Fortunately, one may expect the clause to receive a rough ride in the House of Lords, if not in the House of Commons.

This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh, who regularly teaches on the Laws Study Support Sessions.