Last month the Prime Minister promised business leaders that he would “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review (JR), the means by which individuals and organisations can challenge poor decisions by public authorities in the courts. He even, in a new twist on Goodwin’s Law, compared cutting down on court challenges to beating Hitler.
The consultation document is detailed and is worth reading. It certainly does not reflect the bombast of the Prime Minister’s statement that “We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race“. What is proposed is a fairly significant reform of the Judicial Review system, and nothing as dramatic as winning World War II. There are, however, some problems with the Government’s analysis which I will come to later.
Things start encouragingly. The Justice Secretary Chris Grayling introduces the reforms in sensible fashion. They are intended
to make sure that weak or hopeless cases are filtered out at an early stage so that genuine claims can proceed quickly and efficiently to a conclusion. In this way we will ensure that the right balance is struck between maintaining access to justice and the rule of law on the one hand, while reducing burdens on public services and removing any unnecessary obstacles to economic recovery on the other.
He also calls the measures “simple and proportionate“. But are they?
The first few pages sets out the rationale, which as we know from the Prime Minister’s statement, is the “significant growth” in JR since 1974, when there were 160 applications. In 2011 that had reached 11,000. As the document makes clear (but as the Prime Minister did not mention), the reason for the huge increase is mostly immigration and asylum cases; see this graphic.
So what is to be done? In very short summary, the headlines are:
At the moment, any JR claimant must bring their claim promptly but in any event within three months of the decision which is being challenged. The Government wants to change that, with the time limits for challenges to planning and procurement decisions (but not immigration and asylum) being reduced to six weeks or even a month. As is accepted by the Government, this may not be enough time for a case to be put together, but it will be for planning and procurement lawyers to respond to this.
Another potentially significant proposal is to change the rules for “continuing breach” cases. It is standard across all areas of law (as far as I am aware) that when there is a continuing breach of contract, a tort in this context of rights, time starts running at the last breach; in the JR context this is the first decision complained of. The Government wants to make the first breach the relevant one for time limit purposes. That is quite a big change and will no doubt have many unintended consequences.
Apparently, a claimant “may have up to four opportunities to argue the case for permission“. I am struggling to figure out what the four are, as there are only three mentioned at paragraphs 67-68 (consideration on the papers, oral renewal hearing, Court of Appeal appeal on the papers). Perhaps the Supreme Court is number four, but that is very unusual and isn’t mentioned here.
Anyway, there are two proposals for reform. The first is to “remove the right to an oral hearing in cases where there has already been a prior judicial process involving a hearing considering substantially the same issue as raised in the Judicial Review claim”. The second is to remove the (at present) automatic right to an oral renewal hearing in cases where a judge has, on the papers, said that the claim is “totally without merit“.
The first option sounds more significant and controversial to me than the second. It may have a significant effect on asylum and immigration cases, where “substantially the same issue” has been considered by a tribunal, which is often the case, although that doesn’t necessarily mean that it has been considered in the new context. For example, the Claimant’s article 8 rights to private and family life may have been considered by a tribunal two years previously, and things may have changed since then significantly. The definition of “substantially the same issue” may simply have the effect of adding a new admissibility criterion (as well as arguability) to permission applications. Moreover, in the immigration context, the Secretary of State already has significant powers to block claims which could, should or have been raised earlier.
The second option sounds more sensible. In my experience, where a Judge has said a case is totally without merit, it is extremely rare (I am struggling to think of an example from my practice) for a claim to then be granted permission on an oral renewal. However, there are cases which magically become better pleaded at the oral renewal and therefore change complexion. The advantage of this proposal is that it would encourage claimant solicitors to make sure their initial application is as well pleaded and resourced as it can be and not assume that an oral renewal hearing will necessarily follow.
Fees for applications
Currently, the fee for an application for permission in the High Court is £60, and where permission is granted a further fee of £215 is payable by the applicant for the matter to proceed to a trial. The Government wants to increase the initial fee to £215-£235, with the trial fee being waived if the matter is granted permission. I am not best equipped to say what effect this will have on the number of applications and access to justice, but almost quadrupling the initial fee is bound to have some effect.
Not quite a war, but…
So those are the proposals. Not quite a war but certainly some carefully and not so carefully aimed shots. There are three things which worry me about these proposes. The first is that some are not evidence based. For example, paragraphs 64 (on continuing breaches) and 79 (on rearguing the same points in a different forum) rely entirely on unidentified “anecdotal” evidence. Given how significant those reforms are likely to be for access to justice, anecdotal evidence really isn’t good enough to justify them.
The second thing which is worrying about these reforms is the absence of underlying analysis. The Government says is not expecting to reduce the number of claims, as is made clear in the impact assessment, but it does want to stem the year-on-year increase and make claims quicker.Yet there is no analysis as to why there are so many claims compared to the 1970s. The underlying assumption seems to be that more challenges to public authorities is bad. But why so? There is at least a case for the increase being due to the increase in the size of the state, the growth in EU and human rights law and the huge increase in immigration. Surely any major reforms which seek to reduce something must be supported by at least some substantive analysis of why that thing has increased.
Thirdly, the essential background which is left unmentioned in the long consultation document is the giant cuts to the Ministry of Justice’s budget. If the real mischief is the length of time it takes to resolve JRs, and assuming that the rise in JR is not a bad thing (and that question hasn’t convincingly been addressed), surely the best way to make them quicker would be to increase the number of judges dealing with them. But that isn’t an option as it would cost more. Which, if the system is actually working well in principle, is a problem for access to justice. If there is no potential to increase funding to the system, then that means there is no choice but to say the system is unsustainable. But if it is unsustainable for financial reasons, that should be made clear.
I said in my last post that reform to JR is not wrong in principle. But it must be supported by evidence. As things stand, the case has not, in my opinion, fully been made out. You have six weeks to make up your own mind and respond to the consultation.
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