The Government has recently launched a further consultation on proposed additional changes to judicial review procedure, building on the previous consultation which resulted in rule changes from 1 July 2013 (to see our e-bulletin on those reforms click here).  These proposals go further than the previous measures and appear to signal a sustained effort to drastically reduce the overall number of judicial reviews.

Key Points:

  • Planning cases may be taken away from the Administrative Court and dealt with in a new planning chamber with specialist judges.
  • The standing test, governing who can bring judicial review proceedings, may be tightened so that a direct interest in the matter is required, reducing the ability of pressure groups and NGOs to bring proceedings in the public interest.
  • The Government wishes to reduce cases where the challenge is based on a procedural defect which, even if corrected, would make no difference to the substantive outcome. Various options for achieving this are outlined.
  • Costs disincentives for unmeritorious cases – the Government is proposing costs measures such as allowing defendants to recover the full costs of unsuccessful oral permission hearings.

Background

Based on concerns about the growth in the number of judicial reviews and the danger of necessary projects being held up because of unmeritorious judicial review challenges, the Government issued a first consultation in December 2012 outlining some limited proposals for reforms to judicial review procedure in order to reduce the number of cases being brought. This consultation resulted in shortening of time limits within which judicial reviews in planning and procurement matters could be brought, and in restrictions on when claimants could seek oral hearings if they were denied permission to proceed with their judicial review. These reforms took effect in July 2013. In addition fee changes are due to be introduced with the aim of creating a disincentive for claimants to bring weak cases. Further, asylum and immigration judicial reviews (the sector which has experienced the greatest growth in terms of volume of cases) are to be moved out of the Administrative Court to the Upper Tribunal in an attempt to free up Court time to deal with other types of judicial reviews more efficiently.

However, the Government still considers that more needs to be done to prevent abuse of judicial review and to prevent growth and infrastructure being stifled by judicial review challenges being used as a delaying or PR tactic.

The Government has now issued a further consultation paper aiming to address three issues:

  1. The impact of judicial review on economic recovery and growth.
  2. The inappropriate use of judicial review as a campaign tactic.
  3. The use of delays and costs associated with judicial review to hinder executive action.

This consultation closes on 1 November 2013.

Proposed reforms

Planning

The Government is concerned to ensure that its streamlining of the planning process is not outweighed by delays if a project is challenged following the grant of permission. This is an area which has a direct and significant impact on economic growth and is therefore understandably a high priority. The main proposal is to create a Land and Planning chamber in the Upper Tribunal which would have specialised judges and would allow planning cases to be dealt with more efficiently than being subject to the delays and backlogs faced in the Administrative Court. If this change is pursued it would take some time to implement as primary legislation would be required to move statutory challenges out of the High Court.

In addition the Government is considering ways to reduce the numbers of statutory challenges, for example under section 288 of the Town and Country Planning Act 1990. Suggestions include introducing a permission filter (which would create consistency between planning judicial reviews and statutory challenges) and withdrawing the availability of legal aid for statutory challenges, unless that would breach the European Convention on Human Rights.

There is also a suggestion to restrict the ability of local authorities to challenge decisions on nationally significant infrastructure projects. The Government is concerned about the use of public money to both bring and defend a particular judicial review, and notes that local authorities already have an opportunity to participate in the planning process for such a project through the consultation requirements.

Standing

Standing governs who may bring a claim for judicial review. The current test is that the claimant must have "a sufficient interest in the matter to which the application relates", but has been applied increasingly leniently by the Courts over the years so that if there is a public interest in having the matter examined it is likely that the Courts would allow the challenge to proceed. Pressure groups and NGOs frequently bring challenges in the public interest, despite having no direct interest in the matter.

The Government now considers that claimants should have a more direct and tangible interest and is therefore considering changing the test to exclude those with only a theoretical or political interest, such as campaigning groups. There are a number of existing alternatives which are being considered:

  1. EU law test – this requires a direct and individual concern, but the Government's view is that this is likely to be inappropriate as too restrictive for judicial review.
  2. Human Rights Act 1998 – this requires a claimant to be a "victim" and therefore excludes campaign groups with no direct interest.
  3. Statutory planning challenges require the claimant to be a "person aggrieved", which the Courts interpret as requiring some prior participation in the decision making process or a relevant interest in the land in question.
  4. Availability of public funding for judicial review requires a "direct interest" by the applicant for legal aid and requires there to be the potential to produce a benefit for the individual, his family or the environment.

The Government is aware that tightening the standing test would impact the involvement of expert groups such as NGOs, but considers that there are ways that third parties could still be involved if the Court felt their knowledge would be useful such as allowing them to file evidence or inviting them to intervene. As a general proposition however it appears that the Government wishes to reduce the amount of third party, pressure group and NGO involvement in judicial reviews.

Environmental cases would have to be treated differently as the requirements of the Aarhus Convention dictate that the "public concerned" should be allowed to challenge developments with an environmental impact (a significant proportion of planning and infrastructure projects would fall within the Aarhus Convention).

Procedural Defects

One of the three grounds of judicial review is procedural impropriety, which allows a claimant to challenge a decision made in breach of the required procedures or the rules of natural justice. This ground covers matters such as inadequate consultation or reasons, a failure to allow a party the opportunity to make representations or put their case forward, or a decision tainted by bias. Since the irrationality ground of challenge is notoriously difficult to succeed with, this procedural ground allows important public decisions to be re-examined and provides protection to ensure that public bodies are playing by the rules.

However the Government considers challenges upheld on the basis of a procedural defect to be a waste since, if the same decision is taken again once the procedural defect has been cured, there has been no substantive benefit to the claimant. It therefore wants to allow such challenges to be dealt with more quickly, and with less resource. There are two options outlined in the consultation paper:

  1. Consider fully at the permission stage, including through evidence and an oral hearing if necessary, the issue of whether the procedural defect would actually have made any difference to the final substantive outcome. The main downside to this option is that it would complicate the permission stage and lead to an increase in oral hearings, which contradicts the reforms introduced earlier this year to reduce the number of oral hearings at permission stage.
  2. Introduce a threshold so that if it was "highly likely" that the flaw would not or could not have made any difference the case should be dismissed (although it should be noted that remedies are already at the discretion of the Court and it is therefore already open to the Court to refuse to grant a remedy in such a situation).

Other reforms

There are a number of other reforms also suggested in the consultation paper, including:

  • Considering whether there might be alternative dispute resolution mechanisms used for public sector equality duty challenges to prevent the increased use of judicial reviews looking only at whether a public body had "due regard" to its equality duties.
  • Considering allowing the full costs of permission hearings to be recoverable from unsuccessful claimants, rather than just the costs of the acknowledgment of service as at present.
  • Allowing wasted costs orders to be used in a wider range of circumstances to create a greater incentive for legal representatives to consider whether a case should be brought or particular points deployed.
  • Limiting the use of protective costs orders in non-environmental judicial reviews by insisting on a the requirement of the claimant having "no private interest", requiring greater information on who is funding the litigation and their resources, introducing a presumption of cross caps on defendant's liability and the possibility of fixed limits for both claimant and defendant cost caps.
  • Third party interveners may be required to bear their own costs and also be responsible for any significant increase in the other parties' costs caused by issues they raise.
  • Relaxing the situations in which a case can go straight to the Supreme Court from the court of first instance (known as leapfrogging), such as where there are issues of national importance and allowing leapfrogging directly from tribunals.

Comment

The planning reforms set out in the paper will be welcomed by public bodies and developers alike. However, the majority of the other proposed reforms will give rise to concerns over access to justice.

The far reaching nature of the proposed reforms set out in this consultation paper, especially when taken together, is surprising. Some of the proposals do not appear to be consistent with the previous consultation and other changes made during this year, such as seeking to reduce the number of oral permission hearings. The reforms do not always sit well with the regime which governs environmental cases, based on the UK's obligations under the Aarhus Convention, and although this is acknowledged in the consultation paper there is no real analysis of the impact of the two regimes and how they will interact.

The reforms are a direct and obvious attempt to discourage claimants from bringing judicial reviews, but also send a warning message to pressure groups, campaign groups or NGOs who are accustomed to bringing proceedings in the public interest without criticism or costs risks. It would seem the Government feels that it has been the victim of some recent politicised litigation tactics to stand in the way of its more unpopular policy decisions. Judicial review is an important check on executive power. While few would approve of delaying tactics and unmeritorious claims wasting public money and stifling economic growth, the Government should be careful not to tip the scales too far.