Judicial Review reform


Magna Carta and its progeny

23 November 2014 by

National Archives Displays An Original Copy Of Magna CartaMagna Carta Uncovered, Hart Publishing, October 2014 – details here

Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over  the European Convention versus “rights brought home”.

The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since. 

Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.

We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.

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You cannot be serious! Peers call ‘out’ on Government’s judicial review reforms – Angela Patrick

1 July 2014 by

mcenroeLast night saw the House of Lords’ first reaction to the Government’s proposed changes to judicial review as the Criminal Justice and Courts Bill had its second reading.   Already dissected at some length in this blog, the proposals have been roundly criticised by both the senior judiciary and the Joint Committee on Human Rights.   Consultations responses, including from JUSTICE, expressed concern that the measures appear, by design or coincidence, to undermine the rule of law, inhibit transparency and shield the Government from judicial scrutiny. Two key concerns arise from the Government proposals: restricting access for individuals without substantial means and limiting the courts’ discretion to do justice in the public interest. Yesterday’s debate was robust and eloquent, with former Law Lords joined by bishops and backbenchers alike to condemn the new measures.  

Metaphors were rife. Descriptions of the Government’s proposals ranged from Lord Woolf’s invocation of the image of Governmental wolves among some unlikely judicial sheep, to the titular and topical tennis imagery used with devastating effect by Lord Brown of Eaton –under-Heywood:

“More and more areas of our lives are controlled by public authorities. At the same time we have become understandably, I suggest, less trusting and certainly less deferential towards those with authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today…By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years.” (Col 1591)
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Bad and Very Bad judges

15 May 2014 by


9780854901418A recent, short (71 pages), and interesting book on the phenomenon of the bad judge, by Graeme Williams Q.C: details here.   You may not be surprised to read that, libel laws being what they are, all the subjects of Williams’ book are in their graves. But, as the author points out, the lessons derived from their badnesses live on.

A number of themes emerge.

The first is that bad judges are often clever judges, but people temperamentally ill-suited to listening patiently to other people – which is unsurprisingly a large part of their job.

The second is that some of the most disastrous appointments are truly political ones. Mercifully we now have a sophisticated system of judicial appointments which is currently divorced from the rough and tumble of politics – though with the politicisation of the office of the Lord Chancellor, and the shrilling-up of the press debate about “unelected judges etc etc” we need to keep a beady eye on that. We also have judicial training and all judges will have sat as part timers before they get appointed, so the worst instances of unsuitability get weeded out before they get the full-time job.

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Grayling’s proposals for environmental and planning judicial review

9 February 2014 by

mus_1192620167Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014

At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.

This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.

Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.

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Keep it short, judges: no need to churn to earn

27 July 2013 by

zq5cNeumanns v. Adronikou [2013] EWCA (Civ) 916, 24 July 2013  read judgment

This time of year, high court and appellate judges will have been trying to clear their desks – to stop the complex half-finished judgment from skulking around in their minds and spoiling their holidays.

So they must relish this advice from Mummery LJ, a long-standing member of the Court of Appeal, about brevity – in particular, what to do when the CA is dismissing an appeal from an immaculate judgement below: 

What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

Quite so.

But Mummery LJ did a little more than this in an attempt to stifle down at least some of the words pouring out from the courts, as we shall see.

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

23 April 2013 by

war on JRThe 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.

Why we allow dissent – by our judges

14 October 2012 by

Why do judges disagree and publish their disagreements when cases get decided? After all, the Cabinet does not do so (openly at least), and our FTSE-100 companies do not generally do so, when their executives propose a merger or launch a new product.  Surely, judicial dissent is a recipe for diminishing the authority of the majority answer, and an invitation to self-indulgence on the part of the minority to re-fight lost and irrelevant battles.

Lord Kerr has given a very persuasive answer to both concerns in the Birkenhead lecture on 8 October 2012. But it is worth thinking about the alternative way of doing things, before making up your mind on whether the current way is the best way.

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Lord Chief Justice: Government has too much power to pass new laws [updated]

15 July 2010 by

The Lord Chief Justice has lamented the ease with which new laws can be passed without proper scrutiny, comparing new powers to those which were imposed by England’s worst tyrant.

Lord Judge, who is the Lord Chief Justice and head of the judiciary, was speaking at the annual Lord Mayor’s dinner for the judiciary; his speech can be read here.

The thrust of the judge’s speech was his concern at the proliferation of what he called “Henry VIII” clauses, the proliferation of which had “astonished” him. Henry VIII’s 1539 Statute of Proclamations allowed the King’s proclamations to have the same force as Acts of Parliament. Lord Judge compared this to a series of recent Acts which have given the Government licence to enact law without the scrutiny of Parliament.

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