Supreme Court President warns on restricting access to judicial review

Great care should be taken in any approach to reduce access to judicial review, the President of the Supreme Court has warned.

In a speech to the Institute for Government, Judges and policy: a delicate balance, Lord Neuberger said: “It is a small price to pay for a democratic and just society.”

The President acknowledged that it had sometimes been suggested that the judiciary had arrogated to itself a much greater policy role, with the growth of judicial review, the advent of human rights, and the UK’s membership of the European Union.

But he added: “The growth of judicial review, JR, since the 1960s, reflects the significant expansion of the power of the executive, although it is also attributable to judges who grew up in the questioning 60’s and 70’s replacing those who came of age in the conventional respectful 40’s and 50’s.

“We must always bear in mind that the ability to hold the executive to account is essential to the rule of law: it protects citizens from administrative excess and ensures that the executive adheres to the law.”

Lord Neuberger continued: “It is equally essential for the maintenance of Parliamentary sovereignty. We should take great care in any approach to reduce access to judicial review. It is a small price to pay for a democratic and just society.”

On the issue of legal costs, the President said judges had to look at their procedures and make them more efficient and proportionate in all fields, “and this includes more judicial control before and during hearings, including criminal trials”.

He expressed the hope that the Jackson and Norgrove reforms would improve matters.

However, he suggested that more radical solutions might be required – “such as dispensing with disclosure of documents and cross-examination, even with an oral hearing, in smaller cases: better to have a judge’s summary decision quickly at proportionate cost, than a disproportionately delayed decision at exorbitant cost, or no decision because it is too expensive to get to court”.

Lord Neuberger added that “we may well have something to learn from on-line dispute resolution on e-Bay and elsewhere. And the lawyers have to play their part too.”

The Supreme Court President meanwhile fired two warnings to the Government about its planned cuts in legal aid.

He said: “The first concerns the structuring of any cuts. It is a mistake to have a new legal aid regime with a costs structure which will drive out the best lawyers. Good lawyers save money, because they are less likely (i) to waste time in and out of court, (ii) to be responsible for miscarriages of justice, and (iii) to engender appeals and retrials.”

Lord Neuberger said it was also a mistake to structure legal aid costs so as to reward lawyers for doing long trials: “it inevitably means that trials last longer and cost more, and lawyers should be rewarded for cases lasting less time, not more”.

The President’s second warning was that the money problems faced by legal aid were also faced by the courts system.

“It is vital for the Ministry to appreciate that any changes which are made to reduce legal aid and cut the cost of litigation are likely to have a knock-on effect on the cost of the courts,” he said.

“Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge-time. More judicial control of cases will mean more judge-time out of court to understand the details of each case in advance.”