The Lord Chancellor, Chris Grayling, has launched a public consultation on further proposals to reform the judicial review system.  These proposals are the latest in an increasingly lengthy line of measures to restrict the availability of, and speed up, judicial review and other forms of legal challenge against Government and regulatory decisions.

Key proposals in the latest consultation include:

  • procedural flaws - changing the mechanism for determining judicial review claims alleging procedural flaws, either by bringing forward judicial consideration of the materiality of alleged procedural flaws to the permission stage or by introducing a statutory threshold test for procedural grounds allowing claims to be dismissed if there is a “high likelihood” that the decision challenged would not have been different;
  • standing – narrowing the test for standing (that is, whether a claimant is entitled to bring judicial review proceedings) from one of “sufficient interest”, potentially to mirror the requirement for “direct and invidual concern” in EU law or the “victim” tests under the ECHR;
  • costs – changing the costs approach, in particular to introduce a principle that an unsuccesful party should normally bear the costs of any oral permission hearing, to widen the scope for making wasted costs orders, to reduce the availability of protective costs orders and to address the costs arising from interveners who are not directly affected by the claim; and
  • planning - introducing a new specialist planning chamber of the Upper Tribunal to hear challenges and judicial reviews relating to planning decisions.

The proposed measures are said to be intended “to tackle the burden that the growth in unmeritorious judicial reviews has placed on stretched public services whilst protecting access to justice and the rule of law.” Recent evidence, however, suggests that they are likely to raise further concerns about the UK Government’s determination to reduce the number of legal challenges that it faces. Those include, most recently, far-reaching reforms to regulatory appeals mechanisms, as reported in this blog, as well as significant changes to judicial review mechanisms introduced in recent months.

While it is questionable to what extent some of the proposals will affect the Court’s approach, a number of the proposals, in particular those relating to standing and procedural flaws, demand close scrutiny given their wide application and the centrality of the principles to which they relate.

The consultation period closes on 1 November 2013.