Reforming Judicial Review?

24 January 2013

The Government has consulted on a number of possible changes to the judicial review process. The justification given for the need to reform is that the Government “is concerned that the judicial review process may in some cases be subject to abuses…These proceedings create delays and add to the costs of public services, in some cases stifling innovation and frustrating much needed reforms, including those aimed at stimulating growth and promoting economic recovery”.

The changes proposed in the consultation are in three areas: altering the time limits within which some types of judicial review cases must be brought; changing the procedure for applying for permission to bring judicial review proceedings in some cases; and, changing some of the fees charged in judicial review proceedings.

We have responded to the Government’s consultation. In summary, our views are:

  • The Government has brought forward little or no evidence to show that the “problems” that its proposed measures purport to address are in reality problems at all.
  • The proposed measures may have the unintended consequences of accelerating the issue of judicial review proceedings and increasing the costs of public authorities in dealing with claims, increasing the work load of the Court of Appeal and adding delay to the judicial review process.
  • The proposed measures will at best have a marginal impact on the central problem with judicial review, which is the length of time it takes for a case to be finally determined 
  • The proposed measures should not be taken forward.

 

Latest blogs & news

The Judicial Review and Courts Bill: Proposed reform of Judicial Review

Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.

As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

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.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

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.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

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.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] 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.

Judicial Review Reform – waiting for the sting

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.

Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts

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.

Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’

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.

International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge

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.

Voter ID laws and the way courts interpret legislation

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.

The High Court confirms that unincorporated associations may participate in both judicial review claims and statutory challenges

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.

Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong

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.

Since prorogation ‘never happened’ what happens next?

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.

When politics and law collide: The prorogation judicial reviews

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.

“WhatsApp” with Dominic Grieve’s motion for Brexit communications?

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.

High Court finds Mayor’s Congestion Charge decision did not involve unlawful discrimination

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 [2019] 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

 

London Climate Action Week: Saving Londoners from nitrogen dioxide, one judicial review at a time

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.

KN Green Week: Can law help save the world?

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.

Court finds approach by DWP to Universal Credit ‘odd in the extreme’

The High Court judgment of R (Johnson, Woods, Barrett and Stewart) v SSWP [2019]EWHC 23 (Admin) involved a judicial review challenge to the method of calculating universal credit. The claimants successfully demonstrated that the DWP’s method of calculation was an incorrect interpretation of the Universal Credit Regulations 2013 (the Regulations) as it failed to account for circumstances where workers’ pay dates do not converge with the fixed assessment periods under the universal credit scheme. 

Judicial Review costs – a missed opportunity to extend access to justice

In its consultation “Extending Fixed Recoverable Costs in Civil Cases: Implementing Sir Rupert Jackson’s proposals”, which was launched on 28 March 2019, the Ministry of Justice has failed to take forward a proposal that could have had a significant impact on the ability of individuals to hold public bodies to account through judicial review proceedings.

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