Law Society and Bar Council attack judicial review reforms

The right to bring a judicial review to the courts is "too important to be impaired by hasty reforms”, the Law Society has warned in its response to a Ministry of Justice consultation.

The Bar Council has made a similarly forthright submission, claiming that the MoJ’s proposals would have “the effect of inhibiting access to justice and weakening the accountability of the executive without achieving the aims of speed and efficiency”.

It continued: “In some respects they are liable to add to delay.”

The Law Society claimed the consultation paper offered no analysis of the reasons for an increase in the number of judicial review cases being brought before the courts.

“It does not address the question of whether the underlying problem is in fact the result of faults in the initial decisions which are being challenged,” Chancery Lane said.

“Nor is there any analysis of the reasons for delay in the hearing of judicial review cases, for example, a shortage of judicial resources.”

Chancery Lane suggested that in asylum and immigration cases – which accounted for more than three quarters of applications for permission to apply for judicial review in 2011 – and medical treatment cases, “they may literally involve issues of life and death”.

The MoJ's consultation paper was published after the Prime Minister attacked the “massive growth industry of judicial review” in a speech to the CBI.

David Cameron and Deputy Prime Minister Nick Clegg also argued that delays in the planning system were a drag on economic growth.

The proposals in the subsequent consultation paper included:

• In planning cases, the time after the initial decision that an application for judicial review could be lodged would be reduced from three months to six weeks. This would match the time limit for planning appeals;
• In procurement cases, the time after the initial decision that an application for judicial review could be lodged would be reduced from three months to 30 days, to match the time limit for procurement appeals;
• Clarification in cases based on a continuing issue or multiple decisions, of the point when the time limit starts, “to avoid long delays”;
• The scrapping of oral renewals for any case which has already had a hearing before a judge on substantially the same matter, for example, at a court, tribunal or statutory inquiry.
• The scrapping of oral renewals for any case where the application for permission has been ruled to be ‘totally without merit’ by a judge on the papers;
• The introduction of a new fee for an oral renewal of £215. The MoJ said this could potentially rise to £235 under separate proposals.

However, the Law Society said: “The claim that judicial review challenges to planning decisions are a drag on economic growth is no more than anecdotal assertion. No hard evidence to substantiate that charge is presented in the consultation paper.”

Its submission suggested that, instead, statistics showed that while the number of planning judicial reviews had risen in total from 112 in 1998 to 191 in 2011, the number of applications granted permission to proceed to a full hearing had risen over that time from 51 to only 61, and the number of substantive hearings allowed had actually fallen from 10 to 6.

“These figures might, if taken in isolation, suggest an increase over the last decade in the number of unmeritorious claims lodged at court with a proportionately more robust approach by the courts towards weeding these out,” the Law Society said.

“However, if the number of judicial review applications has increased, then this must be set in its appropriate context, namely a decade of continuing legislative (and policy) reforms to the system.”

Chancery Lane added that the figures were misleading if they were interpreted to mean a disproportionately large increase in unmeritorious claims because the figures did not account for the substantial number of meritorious review applications which were settled (in the applicant’s favour) before the permission or hearing stage was reached.

The Law Society insisted it was not opposed to the reform of the judicial review process where improvements could be made to the efficiency of the process.

As examples, it cited:

• Claims could be brought more quickly ("CPR 54 does after all say ‘promptly’") but that would only work if all of the parties acted promptly in taking pre-action steps;
• Prompt compliance with the pre-action protocol was desirable;
• The pre-action protocol could be better enforced;
• Better quality decision documents and responses from public authorities were essential;
• Judicial resources were necessary to enable cases to be dealt with quicker.

For its part, the Bar Council said it believed that rigorous case management by the judges of the Administrative Court, “which may be bolstered (if deemed advisable) by amendments to Part 54 of the CPR”, would achieve greater speed and greater efficiency without inhibiting access to justice.

It pointed out that much of the business of the Administrative Court concerned challenges “brought by businesses themselves to heavy-handed or wrong-headed decisions by regulatory and other public bodies”.

These decisions, if uncorrected, prevented those businesses from carrying out economic activity that contributed to growth and recovery, the Bar Council argued.

It also expressed concern at the consultation paper’s assertion that, even where a claim was successful, it might only result in a 'pyrrhic victory' when the matter was remitted to the decision-maker.

“That assertion does not reflect the full position,” it argued. “Oral rehearings act as a useful check by judges. Even more importantly, the public law decision-maker will be bound to take a fresh decision in accordance with the law as declared by the court. An unfair decision will need to be taken again fairly.

“A decision based on irrelevant factors will need to be taken again based only on relevant factors. There cannot – and must not be – any foregone concusion that the decision will be the same."

The Bar Council added that it was inherently in the public interest that public authorities took fair and lawful decisions.

“The scrutiny imparted by judicial review proceedings serves to ensure high standards of public decision-making generally and permits public confidence in the decision-making process," it said.

“The public interest in lawful decision-making goes above and beyond the eventual outcome for any particular claimant."

Both the Law Society and the Bar Council criticised the MoJ for the length of time allocated to the consultation, six weeks, and the fact that it spanned Christmas and New Year.

“There is a danger (in a short consultation) the proposals which have the apparent attraction of being targeted at a genuine problem are accepted without being fully thought through,” the Bar Council warned.

Philip Hoult