The Ministry of Justice has released its response to the consultation on the latest proposals for judicial review reform. Although it has backed down on a number of controversial proposals, it will now bring forward legislation making significant changes to the approach to permission and costs.
Proposed changes to the standing test and to the threshold for rejecting claims where the procedural unlawfulness alleged would have made “no difference” to the outcome both attracted significant criticism on the part of consultees (including the judiciary, whose response to the consultation was published today). However, the Justice Secretary’s final “way forward” has reached very different conclusions on the need to implement those proposals, which are discussed in detail below.
The other reforms – also likely to be the subject of much discussion, but not addressed here – include:
The establishment of a specialist Planning Court within the High Court; Amendments to the “leapfrog” procedure, allowing appeals direct from the High Court to the Supreme Court in a wider range of circumstances (both in judicial review and civil proceedings); and Significant changes to the financial aspects of JR, such as restricting the availability of Protective Costs Orders and extending the recoverability of costs against non-parties.
Under section 31(3) of the Senior Courts Act 1981, the Court may not grant leave for a claimant to proceed with a claim in JR unless he or she has “sufficient interest in the matter to which the application relates“. Mr Grayling’s concerns with that “sufficient interest” test were predicated on fears that bodies such as NGOs and pressure groups were mounting too many JR claims, and for the wrong reasons. That was despite statistics showing that between 2007 and 2011, around only 50 JRs per year were lodged by NGOs, charities, pressure groups and faith organisations. This stance attracted criticism from many respondents, who argued that it misunderstood the societal and constitutional purpose of judicial review (which was not merely a mechanism for vindicating individual rights) and put the maintenance of the rule of law in jeopardy. The judiciary’s consultation response, for example, stated that:
The test for standing in judicial review must be such as to vindicate the rule of law. Unlawful use of executive power should not persist because of the absence of an available challenger with a sufficient interest. The existing test of standing meets that requirement and we do not consider there to be a problem with it. We do not agree with the suggestion that standing should be limited in some way to those with a direct interest in the subject matter and that the public interest in the vindication of the rule of law should play no part in the court’s determination of whether a person has standing to being a claim.
Those concerns have apparently not fallen on deaf ears. Noting the significant opposition to the standing proposals, the Government is now of the view that while “the current approach to judicial reviews allows for misuse…amending standing [is not] the best way to limit the potential for mischief.” Such “mischief”, it argues, is best addressed through a “strong package of financial reforms“, such as limiting the availability of Protective Costs Orders and by reforms to the rules on procedural defects.
As for the “no difference” test in cases of alleged procedural defects, the status quo will not survive Mr Grayling’s reforms. Clause 50 of the Criminal Justice and Court Bill, as it stands, will abolish the common law test of “inevitability” (according to which, the courts may currently refuse permission, or relief, where, but for the alleged procedural flaw, the outcome would have been no different). Instead, the Court, “[w]hen considering whether to grant leave to make an application for judicial review” (ie at the permission stage) must refuse permission where it is “highly likely” that the outcome would not have been “substantially different”. That question “must” also be considered if raised by the defendant, although, as the judicial response to the consultation highlighted, that is, in practice, already the case:
[w]hen a defendant raises [that] argument on the acknowledgment of service, the court will necessarily consider [it] when considering whether or not to give permission. It is unnecessary to impose an express duty on the court to do so.
The statutory footing for claimants to embark upon a JR claim, and the fluid body of case law surrounding that test would appear to have escaped unscathed (that is, absent any new proposals for “further further reform”). That said, any changes, had they gone ahead, would likely have had limited impact for commercial JR claims, in which claimants will usually have a direct commercial stake in the matter. The Government climb-down will nevertheless be welcomed by those concerned that unlawful Executive action may have gone unchecked simply for want of a claimant with a “direct interest”.
Some may question, however, whether that proposal was merely a smoke screen – a “worst-case” scenario to render more palatable the remainder of the changes envisaged, which changes may indeed have significant implications for the future of JR.
Indeed, the procedural defect reform arguably brings about a significant shift to the permission stage in terms of both costs and time. Mindful that a defendant may advance the “no substantial difference” argument at the permission stage, claimants will be incentivised to produce more evidence and thus incur more costs to ensure that they overcome the “arguability” permission threshold and avoid falling foul of the “highly likely” statutory test. This could significantly increase the administrative burden on the Court that the Government is so eager to avoid.
The judicial approach to such a change is also difficult to predict with certainty. How will judicial interpretation of the words “highly likely” differ from “inevitability”? The Government’s response recognises that “where there is anything more than a minor doubt as to whether there would have been no difference the courts would still be able to grant permission or a remedy“. If the courts err on the side of caution (no doubt mindful of the rule of law and fair trial rights), granting permission even where there is only a “minor doubt”, the change envisaged by this proposal may be minimal. Further, in an effort to avoid allowing meritorious cases to slip through the net, the courts may be minded to embark upon a full-scale review of the facts at the permission stage. Again, this would appear to run counter to the spirit of Mr Grayling’s major structural reforms (which have already sought to reduce the use of resources at the permission stage, such as by disallowing renewed applications for permission in cases “totally without merit”).
How these difficulties will play out remains to be seen, and it will be interesting to observe the extent to which the Government’s proposals are subject to criticism and/or modification as the Criminal Justice and Courts Bill begins its passage through Parliament.