Supreme Court President fires warning over judicial review reforms

Cost-cutting proposals to reform judicial review risk deterring a significant number of valid applications, “and will save a pathetically small sum”, the President of the Supreme Court has warned.

Giving the Justice – Tom Sargant Memorial Lecture 2013, which he entitled Justice in an Age of Austerity, Lord Neuberger highlighted the Government’s recent consultation paper containing proposals intended to cut down the cost and delay involved in JR applications.

He said: “The desire to discourage weak applications is understandable, even, laudable, and the desire to reduce delay and expense is plainly right, at least in principle.

“However, one must be very careful about any proposals whose aim is to cut down the right to JR. The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government, or other public bodies.”

Lord Neuberger added that with the ever-increasing power of Government – “which now commands almost half the country’s GDP” – this function of calling the executive to account “could not be more important”.

The President said: “I am not suggesting that we have a dysfunctional or ill-intentioned executive, but the more power that a government has, the more likely it is that there will be abuses and excesses which result in injustice to citizens, and the more important it is for the rule of law that such abuses and excesses can be brought before an impartial and experienced judge who can deal with them openly, dispassionately and fairly.”

The judge suggested that while the Government was entitled to look at the way judicial review was operating and to propose improvements, “we must look at any proposed changes with particular care, because of the importance of maintaining JR, and also bearing in mind that the proposed changes come from the very body which is at the receiving end of JR”.

Lord Neuberger made three points about the proposals. In addition to warning about the limited impact of the cost-cutting proposals, he said:

• The cause of the delays complained of was largely historic, “thanks to the very recent removal of asylum and immigration cases from the Administrative Court to the Upper Tribunal, which the judges proposed in 2009”; and
• Cutting down time limits for JR applications might actually increase the work, “due to rushed applications and many more requests for extensions of time”.

In his lecture, the President also warned of the potential impact of cuts to legal aid.

“Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation,” he said. “That is true whether one reduces the types of claim which qualify for legal aid or increases the stringency of the requirements of eligibility for legal aid. The recent changes have done both.”

The judge said there were two possible consequences if a person with a potential claim could not get legal aid. “The first is that the claim is dropped: that is a rank denial of justice and a blot on the rule of law. The second is that the claim is pursued, in which case it will be pursued inefficiently, and will take up much more of the court staff’s time and of the judge’s time in and out of court. So that means greater costs for the court system, and delay for other litigants.”