Judicial Review Reforms – a collision course with the judges?

16 September 2013

The Ministry of Justice has recently published a further consultation paper on judicial review “reform”, proposing a wide range of measures to supplement those introduced in the wake of the consultation published at the end of last year.

Two things are immediately striking about the Government’s new proposals. First, is the paucity of evidence relied on to show that change is needed – the first consultation could fairly be characterised as having been “evidence lite”, but the current consultation relies on even less solid information to show that real problems are being addressed. Second, is that in relation to at least three proposals the Government is in substance saying that the judges who deal with judicial review cases have gone wrong in the way that they have developed the law – and that the “national interest” requires this to be corrected. 

The three areas where the judges have apparently been in error are:

  • In applying too high a threshold  before dismissing challenges where what is said to have gone wrong is solely a procedural defect in the decision making
  • In allowing too many claimants to have the benefit of Protective Costs Orders
  • In applying too liberal an approach to the question of standing – or, putting it another way, in allowing too many people (and organisations) the chance to bring judicial review proceedings at all.

Two characteristics running across all three of these areas are: that the judges have, until now at least, had a very broad discretion or area of judgment in deciding how to approach their decisions; and, that the judges’ approach across all three (but in particular in relation to PCOs and standing) has been very heavily influenced by a clear perception of what the public interest requires in terms of permitting judicial review claims to proceed – in broad terms, a wish to avoid a “gap” where unlawful decisions cannot in practice be challenged.

Although it can only be a matter of speculation at this stage, it seems unlikely that the judges will welcome the suggestion that they have got things so wrong. Led by the Lord Chief Justice and the Master of the Rolls, the senior judiciary did put in a response to last year’s consultation. For the most part it was relatively supportive of what was then proposed (and, notably, in the two specific areas where it voiced objections, the Government did not take forward the proposals that had been criticised). One suspects that a consultation response will be submitted this time as well and if the judges object to the proposals in these three areas, the Government will be faced with the difficult choice of backing down or riding roughshod over those objections.

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