On 19 November 2012, David Cameron gave a speech to the CBI about speeding up the machinery of government to secure economic success. He pointed out that implementing government policy is hampered by requirements to consult, to carry out equality impact assessments (EIAs) and to comply with EU procurement rules, and then sometimes having to defend a judicial review challenge of the proposal. Unclogging the process would mean that roads and railways (the drivers of economic prosperity), but not necessarily the airports(!), can be built more quickly. The government therefore proposes introducing the following measures:
- Cutting back on judicial reviews.
- Reducing government consultations.
- Streamlining European legislation.
- Stopping the gold-plating of legislation in the UK.
- “Calling time” on EIAs.
In this opinion piece, we concentrate on the proposed measures to reduce the number of judicial review applications.
So what will be the focus of change in judicial review (which David Cameron described as a “massive growth industry” in Britain)? The Prime Minister talked about measures to cut the number of applications for judicial review. These include introducing tighter time limits and higher charges for judicial review applications. Although he acknowledged that some judicial reviews – such as the West Coast mainline challenge – are well-founded, the focus will be on eliminating those applications that are “completely pointless”.
The Ministry of Justice’s (MOJ) website states the planned measures will tackle the problem of “costly and spurious review cases” clogging up the courts. The plan is that by reducing the number of “ill-founded” judicial review applications, other applications can be dealt with more swiftly and effectively. Despite the concerns of many civil action groups, the MOJ states that the changes will deal with the unnecessary delays to the system, rather than altering the important role judicial reviews play in holding the government and other public bodies to account (although David Cameron clearly feels the public should be more trusting of the “smart people” in Whitehall).
According to the MOJ, the number of judicial review applications has rocketed in the last 30 years, from 160 applications in 1975 to 11,200 in 2011, a figure somewhat distorted by the level of applications in asylum and immigration claims (see below). A look at the success rates for applications makes interesting reading. The proportion of successful applicants who were granted permission (the first stage of the judicial review procedure) was very low (said to be 6% of judicial review applications). This reduces further to only around 1% of applicants who actually succeed at the substantive hearing stage. Both sides of the argument could draw support from these figures, that is that decision-making is not being interfered with by the courts, but also that the level of unsuccessful applications is too high. For more information on these statistics, see Legal update, Judicial and court statistics 2011 published (June 2012), which report confirms that the majority of the 2011 judicial review applications related to asylum and immigration matters (as in 2010).
The intention therefore is that judicial reviews will continue their important role in ensuring that bodies exercising public functions act lawfully and fairly. However, having publicly heralded changing the process, there is little detail on what is proposed, other than confirming the intention is to:
- Shorten the length of time following an initial decision that an application for judicial review can be made in some cases and stopping individuals from using tactical delays. However, there is already a requirement to bring cases promptly and in any event within three months of the decision being challenged. The determination of what is “promptly” is at the court’s discretion. It will depend upon the circumstances of the case and, in particular, the urgency with which the decision needs to be implemented and the impact of the delay on the public authority and others.
- Halve the maximum number of opportunities currently available to challenge the refusal of permission for a judicial review, from four to two. Currently, if an application for permission to apply for judicial review fails on the papers, the individual may apply for an oral reconsideration of the application. This is so, even though the purpose of a judge considering the application on the papers is intended to prevent claims that are hopeless, frivolous or vexatious from proceeding. (Admittedly, the court’s test for granting permission on the papers is a low one, that is whether there is an arguable case for judicial review that justifies a full investigation of the substantive merits.)
- Reform the current fees, so that they cover the costs of providing judicial review proceedings.
More will become known once the promised public engagement exercise on the plans is published. PLC Public Sector will be following the next stage with interest, but whether the heralded changes to the judicial review process will actually assist the government in business is open to debate.