Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.
No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.
As I have done with other consultations in the past, I have compiled – entirely unscientifically based on those who have sent them to me – a review of some of the consultation responses. As you can probably guess, it isn’t pretty. Although the responses vary in the finer details, most complain about the very short consultation period (six weeks over Christmas and new year), the lack of evidence underpinning the reforms and the generally poor quality of the recommendations. I have only been able to track down one broadly positive response, from the City of London Law Society, which addresses the aspects of the proposals which relate to planning law.
Administrative Law Bar Association (ALBA): “… we are concerned about the unacceptably short time frame for the consultation… no attempt is made to quantify the costs of unlawful action. Nor is any single example given of an innovation or reform that was wrongly delayed or frustrated as a result of the current procedures.. The object of measures like this is not to limit the number of cases as an end in itself but to ensure… that the resources of the court and the parties are not diverted to dealing with excessively weak or stale claims. But any restrictions of this nature will inevitably risk permitting some wrong decisions to stand…”
Bingham Centre for the Rule of Law: “As Lord Dyson recently put it, “there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review”. Indeed, it is difficult to overstate the fundamentality of the values protected by courts via judicial review… Proposing significant changes to the judicial review system in this way represents a fundamental failure to formulate policy on the basis of demonstrable and contestable evidence and perpetuates myths about the purpose and effect of our public law.”
British Institute of Human Rights: “BIHR is worried that the context for this consultation, and justifications provided within it do not sufficiently recognise the constitutional importance of judicial review… we note that restrictions placed on accessing judicial review, may raise concerns under the Human Rights Act… The European Court of Human Rights has been clear that our ECHR rights must be “practical and effective” and not “theoretical or illusory”.
British Irish Rights Watch: “Although the Government has argued that there are a number of judicial review claims which have been of ‘substantially the same matter’ it is noteworthy that the government has no evidence to support this claim. It only provides anecdotal evidence… We are concerned that the Government conflates the ‘growth’ of Judicial Review claims with a rise in claims without reasonable prospect of ‘success’. The statistics cited fail to record the number of claims which are settled out of court before judgment is made on permission.” [this response has no executive summary but is detailed and interesting so bears reading in full].
Child Poverty Action Group: “CPAG believes that the proposals in the Consultation will damage access to justice and the Rule of Law, while there is no evidence that they will achieve the Government’s aims of reducing the burden on public services or removing the unnecessary obstacles to economic recovery. We are particularly concerned by the heavy reliance on anecdotal and misleading statistical evidence”
City of London Law Society: ”Our experience bears out the concerns expressed by Government about the cost and delay of judicial review litigation and its use by claimants for tactical reasons; we also believe that there is clear evidence that the risk of judicial review results in more complexity, cost and delay in the planning system… Generally, we welcome the Government’s proposals and in particular the efforts to reduce delay in the judicial review procedure and to introduce more rigour to the screening of judicial review claims at the permission stage.”
Equality and Diversity Forum: “… the Ministry of Justice in its press release has said that – ‘The changes will not alter the important role that Judicial Review plays in holding Government and others to account’ and the Consultation Paper says that ‘The intention of these reforms is not to deny, or restrict, access to justice’. Nevertheless we are worried that these proposed changes will have exactly these adverse effects and we therefore consider that constraints on the application of Judicial Review should be approached with caution.”
Equality and Human Rights Commission: “The Commission is not sure that the evidence advanced in the Consultation Paper supports the premise that there is a need for the changes proposed to the existing system of judicial review [nb. this is the most polite response...]… The Commission notes that there has not yet been an equality impact assessment undertaken in respect of the proposed changes.”
Medical Justice: “Medical Justice has a particular concern in relation to the government’s proposals regarding time limits in cases where there is a continuing breach… this would be a highly retrograde step… Premature claims are more likely as organisations! may be forced to issue proceedings rather than engage in negotiations…There is a risk that vulnerable client groups that rely on the strategic litigation of organisations like Medical Justice may suffer the effects of unlawful policies..”
Northumbria Law School Public Law Research Group: “Where such far-reaching reforms are being suggested, it is a basic and fundamental requirement to base such reforms upon reliable and trustworthy evidence. No such evidence has been put forward… Without such evidence there is no mandate for, and therefore no legitimacy to, the proposals… One further concern that we would like to highlight is the lack of consultation time given.”
Reprieve: “Judicial review is the most important single remedy in Reprieve’s legal work… Our past and ongoing judicial review cases have been crucial in exposing the most serious incidences of executive wrongdoing… Reprieve considers this to be an ill-conceived set of proposals, based on inadequate evidence, which will disproportionately affect the most vulnerable members of society and endanger the bringing of cases of the highest public importance.”
The Bar Council of England and Wales: “The problem with the proposals for reform is that they will have the effect of inhibiting access to justice and weakening the accountability of the executive without achieving the aims of speed and efficiency… Above all, the proposals to remove oral hearings in certain circumstances will damage access to justice. ”
The Law Society: “The right to bring a judicial review to the courts is too important to be impaired by hasty reforms… Aside from the increase in the number of judicial review cases being brought before the courts, the consultation paper offers no analysis of the reasons for that trend… The claim that judicial review challenges to planning decisions are a drag on economic growth is no more than anecdotal assertion…”
University of Cambridge Faculty of Law Centre for Public Law: “Given immigration and asylum cases have been the driver for the growth of review in recent times, and given steps have been and are being taken to move a large portion of such claims out of the ordinary judicial review procedure, it would appear that the case for across-the-board reform of the review procedure premised on the “growth of judicial review” falls away.”
Obviously the consultation will have received more responses than are listed above. But it is now clear that key players, including The Law Society and the Bar Council, have essentially rejected the proposals. These reforms may not be the Government’s Pearl Harbour, but they have managed to raise the ire of almost the entire legal community (not for the first time, as Francis Fitzgibbon QC has pointed out). With this level of criticism, it seems that the only responsible way forward would be a full surrender.
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