‘De-risking’ and financial exclusion
Under the tabloid-friendly press release headline “No more using judicial review as a cheap delaying tactic”, the Ministry of Justice has published the Government’s Response to the consultation on reforming judicial review. To the surprise of many, the Government has actually taken on board at least some of the responses to the consultation and dropped two of its original proposals. It has also modified a further proposal – to reduce the time limits for bringing judicial review in planning and procurement cases - but in doing so may, inadvertently, have created a new area of uncertainty for public bodies, developers and businesses.
The original proposal in relation to planning and procurement cases was that the time limits for bringing a judicial review claim should be shortened to 6 weeks and 30 days respectively, so as to match the periods for statutory challenges to decisions in these areas. The Government’s Response acknowledges that a large majority of those responding to the consultation disagreed with these proposals (and all of its other proposals too) but nevertheless went on to say that “On balance, the Government has concluded that shorter time limits in these cases are justified by the need to reduce delays and to provide greater certainty in public decision-making on planning and procurement matters”.
However, and in reaction to responses to the consultation which were to the effect that these shortened periods would not allow time for the parties to fulfil the existing requirements of the Pre Action protocol, the Government’s Response says that it will be inviting the Master of the Rolls “to revise the Pre-Action Protocol to disapply it in respect of these cases”. This is a very curious thing to do if the aim is to reduce delays and provide greater certainty.
The express aims of the Pre-Action Protocol process are for the parties to identify the issues in dispute and to establish whether litigation can be avoided – and in practice it often meets those aims, with claimants being persuaded that there are no good grounds to bring a claim or defendants being persuaded that there are good reasons to change, or at least modify, decisions. At the very least, the result of going through the process leads a narrowing of the grounds of any challenge. These important benefits will now be lost. In addition, public bodies and those relying on their decisions may now get no notice at all of the likelihood of a judicial review challenge until the day that they are served with the proceedings themselves. A better solution would have been to retain the Pre Action protocol process but to truncate it - although this would need to involve a reduction in the time allowed to a public authority to reply to a pre action letter, which may well be the reason why it was not proposed by the Ministry of Justice (since public authorities already struggle, in our experience, to comply with the existing time limit).
If this introduction of uncertainty and delay were not enough, there is an interesting comment tucked away in one of the responses to the consultation that might be read to suggest that shortening the limitation periods will not always have the Government’s desired effect. The Lord Chief Justice and other senior judges responded to the consultation and did not object in principle to the reduction of the time limits. That acceptance of the change was expressly conditional on the retention of the court’s power to extend time for bringing claims and the judges also said this: “There is likely to be an increase in the number of applications for an extension of time. It is possible that a greater proportion of extension of time applications will succeed”. Some might read the “It is possible...” as a coded warning that the courts are likely to be sympathetic to extension applications - which will only add to the uncertainty that the changes are said to be intended to address.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.
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