Today’s Times is reporting (£) that major planning decisions are to be made challengeable only in a new “planning court”. This suggests that such decisions will be made immune from scrutiny by the High Court in regular judicial-review proceedings. There is nothing inherently wrong with this: only recently, many immigration and asylum decisions were transferred to the judicial-review jurisdiction of the Upper Tribunal. The rule of law is capable of being satisfied other than by the availability of judicial review in the High Court – provided that the statutory substitute is invested with sufficient independence and authority to subject the relevant category of administrative decisions to an appropriate form of scrutiny.
That proviso, however, is crucial. And the Times report suggests that whether the new planning court will cut it in rule-of-law terms is open to question. In particular, if the report is correct, there will be very significant restrictions on who is able to launch proceedings in the proposed new court:
Strict new curbs will mean that only individuals or groups with a financial interest in a case can bring a challenge. The reforms will also put an end to challenges by individuals and campaigners who do not have to pay legal costs, which results in taxpayers picking up the bill. Campaigners who lodge challenges will have to reveal any financial backers, so courts can impose costs fairly.
If this is correct, then the proposal amounts – from the perspective of those lacking a financial interest – to an ouster of judicial review, which is, at its best, constitutionally suspect. I will write in more detail about these proposals when they are officially announced (which, according to the Times, will be later this week). In the meantime, here is a link to a post I wrote last year – when proposals in this area were first floated – raising concerns about limiting the category of prospective claimants with standing to bring judicial-review challenges, and arguing that such proposals reveal a misapprehension about the place of judicial review within our democratic polity.
The Criminal Justice and Courts Bill, together with a Ministry of Justice paper on further reforms to judicial review, have now ben published. The proposal to establish a Planning Court within the High Court is to be taken forward, but the proposed changes to standing have been dropped. For more information and discussion, see this post.