Law Society warns on judicial review reform, public body accountability

The warning came after the Ministry of Justice last week confirmed that it would press ahead with a number of flagship reforms. These included:

• The creation of a specialist Planning Court within the High Court.
• The introduction of a lower threshold for when a defect in procedure would have made no difference to the original outcome. A procedure will be established to allow this to be considered earlier in the case at the permission stage.
• Changes to the ‘leapfrogging’ rules where appeals can go directly to the Supreme Court.
• Reforms to various financial aspects of judicial review, “to deter claimants from bringing or persisting with weak cases”. Changes will be introduced in relation to legal aid for judicial reviews, oral permission hearings, protective costs orders, wasted costs orders, interveners’ costs and third party funding.

The MoJ did, however, scrap controversial plans to change the test for standing in judicial review cases.

Commenting on the reforms, Law Society chief executive Desmond Hudson said: “While some of the proposed reforms are welcome, for example the Planning Court and the opportunity to leap frog to the Supreme Court, others will make it more difficult for people to challenge public authorities’ decisions.

“We think that it is wrong for larger public authorities to frighten off people who have legitimate concerns with threats of high costs and the absence of legal aid will exacerbate this further.”

The Law Society was disappointed that the Government had decided to proceed with its proposal for 'at risk' funding for judicial review permission applications, he added.

“Whilst we acknowledge that there have been some minor changes to the proposed criteria under which the Legal Aid Agency may exercise its discretion to fund cases that conclude before the permissions stage, we think it will be problematic to apply these criteria fairly and consistently,” Hudson said.

“Our main concern remains that the changes will make it more difficult for ordinary citizens to challenge the unreasonable decisions of public bodies.”

A number of the MoJ’s reforms were included in the Criminal Justice and Courts Bill, which was introduced to Parliament last week.