Judicial review reform: False assumptions replaced by objective research

2 November 2015

Contrary to the Government’s repeated claims, judicial review offers value for money and assists in ensuring clarity and development of the law. Research published on 16 October by the Public Law Project, University of Essex and LSE illustrates that negative assumptions justifying the Government reform of judicial review are simply not borne out by the evidence. The report concludes that such claims are “at best misleading and at worst false”.

This research comes at a time when the Government has reformed judicial review culminating in Part 4 of the Criminal Justice and Courts Act 2015. The alleged objective of reform in this area is to deter abusive proceedings for judicial review. Part 4 came into force - in part - on 13 April 2015 and is expected to be implemented in full in due course. Changes implemented include:

  • A court must not permit a judicial review if it appears “highly likely” that the decision or action by the public body would not have been substantially different if the conduct complained of had not occurred;
  • The court must be given information about financial resources available to the party bringing the judicial review. This must be taken into account by the court which will consider a cost order against any party identified in that information;
  • Third-party interveners in judicial review may have to pay other parties’ costs if certain conditions are met;
  • Cost-capping orders will only be available after permission for a judicial review is granted.

These changes are expected to make it significantly more difficult to bring judicial review proceedings, especially for claimants without significant resources. These same claimants are often charities and third sector organisations bringing judicial review proceedings with respect to issues of significant public interest.

Addressing false assumptions

The report highlights a number of false assumptions about the system of judicial review and sets out its findings to disprove each one in turn.

  • False Assumption 1: Judicial review is driven by claimants abusing the system
    Contrary to the assumption that claimants without a legitimate claim were abusing the system, the study concluded that claimants gained a wide range of benefits such as conferment or retention of a service by a public body. The findings did not indicate widespread abuse of the system that would justify a general restriction on access to the court.
  •  False Assumption 2: Judicial review makes it more difficult for public bodies to run efficiently
    The findings showed that whilst JR did impose cost on public bodies, it enabled improvements in the quality of public administration and ensured public bodies meet their legal obligations.Significantly, even failed JR claims were often considered to have led to improvements in the provision of services by public bodies and to more positive engagement between the parties
  •  False Assumption 3: Judicial review is an expensive and time consuming waste of resources which has little effect on the decisions of public bodies
    The research found that when public bodies reconsidered decisions which were declared unlawful in JR proceedings, they often reached a fresh decision in favour of the claimant rather than simply correcting the original decision making process. Moreover, they found that public bodies “appeared to have genuinely engaged with the issues raised”.

This research clearly demonstrates that the concerns expressed by many with respect to judicial review reform were wholly justified (see our earlier blog here). It raises many questions about the negative impact that the totality of reforms to judicial review will have for individuals and the wider public. Will the immediate cost-saving achieved by limiting judicial review benefit the tax paying public in whose name the Government is making these changes? Or is this a false economy which will ultimately result in greater financial costs to the public purse and much wider social costs? This research suggests the latter.

Either way, it is clear that this is research that the Government itself should have commissioned long before implementing significant changes to such a fundamental check upon the exercise of state power.

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