On 5 February 2014 the Ministry of Justice published the Government Response to the consultation 'Judicial review: proposals for further reform'. The Government received a large number of responses to the consultation, many from practitioners opposed to the proposed reforms. You can read our comments on the consultation here.
In summary, the Government decided not to change the rules on standing. However, the Government is planning to implement: changes to the "no difference" test; and changes to costs.
Wider framework of the current reforms
It is worth bearing in mind that the Government's current planned reforms are in addition to key changes made in 2013, for example to shorten the time limits to challenge planning and procurement decisions.
We welcome the Government's decision not to change the test for standing. The change would have required a claimant to have a direct and tangible interest in the subject matter of an application (at least in part to exclude those with only a "political or theoretical interest, such as campaigning groups").
The test for standing will therefore remain focussed on whether a claimant has "sufficient interest" to bring a claim (so that a person with a genuine interest but who is not personally impacted may be able to challenge a decision).
Many respondents argued that changing the test for standing would shield the executive from challenge and move the focus of judicial review from challenging public wrong to protecting private rights. Further, as we argued in our response to the consultation, those with a direct interest in challenging a decision may not be in a position or have the resources to challenge matters of genuine public concern.
The Government intends instead to limit judicial review challenges by introducing a package of financial reforms (see below).
Procedural defects - the "no difference" test
Currently, if the outcome of a decision would inevitably have been the same even if a defect had not occurred then the Court can refuse to grant a remedy (the "no difference" test).
The Government plans to proceed with its planned changes to the "no difference" test, so that:
- it will only be necessary to establish that there is a "high likelihood" that the outcome of a decision would have been the same (rather than the outcome would "inevitably" have been the same); and
- "no difference" arguments are considered at the permission stage.
The Government acknowledged concerns that the proposed changes would lead to a "dress rehearsal" of the issues at a permission stage. However, the Government was satisfied that the risk of dress rehearsals is manageable. The Government did not explain the reasons for its position. We maintain that is highly likely that bringing forward "no difference" arguments to the permission stage will increase costs for all parties. Further, reducing the threshold to "high likelihood" is likely to lead to greater uncertainty and to increase the risk of error.
The Government plans to go ahead with changes to costs in judicial review claims. The aim of the changes is to deter weak claims being made (as the Government considers weak claims place pressure on the courts and potentially delay important projects and policies).
Two of the key changes concern:
- Protective Costs Orders ("PCOs"); and
The Government intends to push ahead with a strict framework for PCOs, for example:
- the public interest test will now be 'applied strictly' in accordance with the new statutory footing which it is being given; and
- there will also be a presumption of a cross cap where PCOs are granted.
The Government also intends to introduce a presumption that interveners in a judicial review will have to pay their own costs as well as any costs they have caused to either party by virtue of their intervention.
In our experience, interveners can provide valuable assistance to the court. Unfortunately, the proposed changes may well reduce the number of interventions. The Government expressly noted that the courts will retain their discretion not to award costs where it is not in the interests of justice to do so. Hopefully, the courts will exercise their discretion to protect interveners from having to pay the costs of the parties in judicial review proceedings.
We have highlighted the main reforms that we believe are of interest but you can read the Government Response in full here.