Government pressing ahead with (most of) its proposals to restrict access to judicial review – Mark Elliott

23 April 2013 by Guest Contributor

The Ministry of Justice has released its response to the comments generated by the consultation paper on judicial review that was published in December. Unsurprisingly, the Government has signalled that it intends to press ahead with most of the proposals upon which it consulted. In particular, it plans to implement the following proposals:

• Time limits  The time limit for judicial review (which at three months is already very short) will be reduced to six weeks in planning cases and thirty days in procurement cases. The Government recognizes that these timescales are so short that compliance with the Pre-Action Protocol will be impossible, so it will invite the judiciary to disapply the Protocol in such cases. Given that one of the objectives of the Pre-Action Protocol is to encourage pre-litigious resolution of disputes, it is not clear how this will promote the Government’s objective of reducing recourse to litigation.

• Oral renewal of applications certified as “totally without merit”  If a claimant seeks permission for judicial review and is turned down on the papers, the right to renew the application orally will be withdrawn if it is certified as “totally without merit” by the judge who considers the application on the papers. Given the number of cases in which claimants who initially fail go on to succeed at the oral renewal stage, the removal of oral renewal in such cases will likely represent a real and significant restriction upon access to justice.

• Fees  A claimant who can and who chooses to renew an application orally will now have to pay a fee of £215 to do so. While this may not sound like a great deal on its own, it forms part of a wider tableau of financial obstacles to judicial review.

There are, however, two proposals that the Ministry of Justice is not taking forward:

• “Continuing” or “multiple breach” cases  In the consultation paper, the Government proposed that when there is a series of linked administrative acts, the time limit for seeking judicial review should commence when the first such act is committed. That proposal has now been withdrawn. This is sensible, given that its adoption would likely have encouraged early—and potentially premature and needless—recourse to litigation by claimants anxious to avoid finding themselves out of time.

• Oral renewal where there has been a prior judicial hearing in relation to substantively the same matter  The Ministry of Justice has also, sensibly, abandoned its proposal to remove the possibility of oral renewal in cases in which substantively the same matter as that which forms the focus of the judicial review application has already been the subject of a judicial hearing. The Government insists that the “principle underpinning this proposal” is sound, but concedes that difficulties would arise in relation to defining the circumstances in which the restriction would apply, and that this might lead to further litigation.

I have commented on the Government’s proposals elsewhere—including in a post on the UK Constitutional Law Blog and (together with Sir Jeffrey Jowell) in the Bingham Centre for the Rule of Law’s response to the consultation paper. I need not repeat those views here, and instead will comment briefly on three broad matters emerging from the Ministry of Justice’s latest paper.

First, the general tenor of the paper—like that of the original consultation paper—casts judicial review in a largely negative light. Clichés about “weak”, “frivolous” and “unmeritorious” cases are once again employed, and the “delays” caused by judicial review are cited as sources of “uncertainty” that “discourage investment” and place “the financial viability of projects at risk”. There is little, if any, acknowledgment of crucial constitutional role played by judicial review.

Second, the Ministry of Justice appears to be unabashed in the face of the excoriating criticism that was directed both at the content of its proposals and the way in which the consultation exercise was conducted.  In a foreword, the Secretary of State for Justice and Lord Chancellor, Chris Grayling MP, points to “a body of support” for his proposals, whilst acknowledging that “most of the responses” were critical. But, he baldly says, “I do not accept these criticisms.” And the paper is dismissive of the (unanswerable) argument that much of the consultation was based upon unsubstantiated assertion. It is, of course, a good thing that some of the original ill-considered proposals have been dropped—but what I have referred to elsewhere as the “mood music” has not really changed. As far as the Government is concerned, it seems that judicial review remains an unwelcome irritant.

Third, the point, of course, is that judicial review is—and should be—an unwelcome irritant from the perspective of Government; if it wasn’t, then there would be something wrong. Indeed, judicial review is perhaps the pre-eminent manifestation of what Conor Gearty has recently termed the “important inconvenience of the rule of law”. The Government, however, appears intent on smoothing out judicial review’s rough edges in order to make it less of an inconvenience. In particular—and ominously—the Ministry of Justice says at paragraph 24 of its paper that:

The Government continues to believe that there may be scope to further streamline the process of Judicial Review, particularly for crucial infrastructure and housing projects. We are working to develop any further measures for reform by summer 2013.

What those “reforms” might consist of remains to be seen. But it goes without saying that what constitutes, from the Government’s point of view, “streamlining” is likely, from the intending claimant’s perspective, to amount to further restrictions upon access to justice.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post first appeared on Mark’s blog, Public Law for Everyone.  

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