New Ministry of Justice consultation paper – Judicial Review: Proposals for Further Reform

The Ministry of Justice has published a consultation paper on Judicial Review: Proposals for Further Reform. Here is a brief summary of the main proposals:

  • Planning judicial reviews would be transferred from the Administrative Court to a specialist chamber of the Upper Tribunal (most likely a revamped and rebranded Lands Chamber).
  • Local authorities may be restricted in their capacity to launch judicial review proceedings in relation to “nationally significant infrastructure projects”.
  • Legal aid may be withdrawn in relation to statutory challenges to those planning decisions in which it is currently available, where an individual is at immediate risk of losing his or her home.
  • The test for standing may be changed – i.e. narrowed – in order to prevent judicial review from being sought by campaign and pressure groups; the government considers it problematic that, at present, claimants unaffected by a decision may nevertheless obtain standing when there is a strong public interest in the case being examined by a court.
  • The “makes no difference” principle – whereby a court may, in its discretion, dismiss a challenge if a procedural defect made no material difference to the outcome of the decision-making process – may be given greater weight.  Two options are canvassed: enabling this issue to be aired at the permission stage (and permission denied where the “makes no difference” argument is made out), and introducing a new statutory test: rather than the principle being triggered where an identical outcome is inevitable, it might be triggered if it were “reasonably clear” that the procedural flaw would or could not have made a difference.
  • The enforcement of the Public Sector Equality Duty may be shifted into a mechanism other than judicial review. (What that mechanism might be remains to be identified.)
  • A revised proposal concerning legal aid is also advanced in the paper. It resurrects the proposal to pay providers only if permission is granted, but seeks to soften the blow by introducing a discretion to pay providers in certain cases that conclude prior to the permission stage.
  • There is also a proposal that “the costs of an oral permission hearing should usually be recoverable and that it should be possible for an unsuccessful claimant to be ordered to pay the defendant’s reasonable costs of defending the unsuccessful application”.
  • The availability of leapfrog appeals to the Supreme Court may be extended, e.g. permitting such appeals against decisions of the Special Immigration Appeals Commission and the Upper Tribunal.

The tone of the consultation paper is predictable: judicial review is once again castigated as an obstacle to economic growth and a tool that is cynically exploited to place expense and delay in the way of progress. Of course, the present system is not perfect. It is, however, hard to avoid the conclusion that those who are driving the policy agenda within government in this area are instinctively opposed to judicial review. It would, of course, be surprising if the government were judicial review’s biggest fan: the point of judicial review is to get in the way of government where the latter transgresses the boundaries of its authority. It does not, however, follow that government should – or even can – retaliate so as to recast judicial review in a form more palatable to ministers. Judicial review should not be regarded as something which exists only on the terms that the government of the day is prepared to allow. As a constitutional counterweight to the might of the executive, judicial review ought not to be reduced to the government’s plaything – something to be tolerated, diminished or sidelined as the administration sees fit.

The most worrying aspect of these proposals, then, is not the detailed content of any individual aspect of them (although there is plenty to be concerned about on that front). Rather, the most concerning matter is the underlying – but very clearly implicit – assumption that the nature of the relationship between the government and the courts falls to be determined by the former (with the assistance of Parliament where necessary). It is the very fact that such lop-sidedness is hard-wired into our existing constitutional arrangements that makes political restraint imperative; and it is precisely such restraint that is increasingly lacking. Earlier this week, the Political and Constitutional Reform Committee of the House of Commons launched an inquiry into the role the judiciary would have if a codified constitution were adopted. Such a constitution would almost certainly confer upon the courts greater – and constitutionally more secure – powers than those which they presently enjoy (at least on an orthodox understanding of the existing, unwritten constitution). It is ironic, therefore, that the present government’s attempts to exploit the perceived constitutional fragility of the courts’ position may come to serve as one of strongest arguments for a more formal constitutional settlement that would place the courts’ authority beyond such political interference.

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