In 2013, the Government initiated a series of reforms intended to streamline the process of judicial review. The initial reforms took effect from 1 July 2013[1]. The Government then proposed further reforms for consultation[2], which are currently under review.

In this article, we comment on the scope and content of the reforms, with a particular focus on what the reforms mean in practice.

Introduction

Judicial review is a critical constitutional constraint ensuring the lawful exercise of public powers and duties. As Lord Neuberger, President of the Supreme Court, said, “we must look at any proposed changes with particular care…bearing in mind that the proposed changes come from the very body which is at the receiving end of judicial review”.

While it accepts that judicial review is a crucial check to ensure lawful public administration, the Ministry of Justice has suggested that its reforms are warranted:

  1. in view of the number of weak, frivolous and unmeritorious cases congesting the system; and
  2. to disincentivise applicants who seek to use judicial review for campaigning purposes or as a tactical device to delay executive decision-making.

Many commentators have emphasised the potential for the proposed reforms to seriously undermine the rule of law and access to justice. Other key criticisms of the proposed reforms include the following:

  1. the Ministry of Justice has not set out convincing evidence that the reforms are warranted;
  2. there are already legal mechanisms in place which the judiciary can use to control the burden and cost of judicial review; and
  3. the proposals go beyond what is necessary to achieve the Ministry of Justice’s aims (i.e. the Ministry of Justice is using a “sledgehammer to crack a nut”).

The first tranche of reforms

The Secretary of State, Chris Grayling, accepted that most of the responses to the consultation opposed reform (for example, some of the responses criticised a lack of evidence and others considered the proposals to be a serious attack on the rule of law). Despite those criticisms, many of the reforms were still implemented. The Ministry of Justice’s explanation of the first tranche of reforms can be read here.

The reform in the first tranche which is likely to have the greatest impact on Baker & McKenzie’s clients is the shortening of time limits to challenge planning and procurement decisions. The time limit for bringing a judicial review has been shortened from three months of the grounds giving rise to the claim to:

  1. six weeks in respect of planning cases; and
  2. the same time required under the Public Contracts Regulations 2006 in respect of procurement cases (effectively this means 30 days).

The Government considered that shorter time limits in these cases were justified by the need to reduce delays and to provide greater certainty in public decision-making on planning and procurement matters.

The time limit change may benefit those awarded government contracts or those seeking to develop land by minimising the risk of delay caused by legal challenges to those projects. However, there remains a risk, acknowledged by the Ministry of Justice, that satellite litigation could be generated in any case by those arguing that they are within time to bring a challenge and that the “final” decision was not made (or grounds giving rise to the claim did not arise) until some time after the date identified by Government. Such litigation could in itself lead to the delays that the Government sought to avoid by implementing this reform.

The second tranche of reforms (the “Proposed Reforms”)

The Proposed Reforms can be read in full here and are more wide-ranging. We highlight some of the key proposals below.

Standing

The Government sought views on whether the test for standing should be changed so that only claimants who are directly affected by a decision should be able to challenge that decision by judicial review.

The current rules on standing focus on whether a claimant has “sufficient interest” to bring a claim (this means that persons with a genuine interest but who are not personally impacted may be able to challenge a decision).

In our view, the current rules are fit for purpose and the Court is already able to refuse standing to claimants who are motivated by improper purposes. It is important that the Court is able to decide, on the basis of the facts in each case, whether a person who does not have a direct interest in a matter has standing to bring a challenge. Those with a sufficient interest in a decision (directly affected by the outcome of a decision or not) should have the ability to challenge the decision, not least because those with a direct interest in a decision may not be in a position or have the resources to challenge matters of genuine public concern.

We expect that most commercial judicial review claimants would be directly affected by a decision they want to challenge. However, this will not always be the case.

Procedural defects - the “no difference test”

In certain circumstances, if the outcome of a decision would inevitably have been the same even if a procedural defect had not occurred (i.e. the defect made “no difference”), the Court can refuse to grant a remedy.

The Government is considering two proposals:

  1. bringing forward the consideration of “no difference” arguments to the permission stage; and
  2. lowering the threshold, for example to “high likelihood” rather than inevitability.

The proposal to bring consideration of the “no difference” argument forward would inevitably lead to greater costs and delay by making the permission stage more cumbersome for the Court and the parties. It is highly likely that considering “no difference” arguments would require an oral hearing, which would inevitably be seen as a “dress rehearsal” by the parties. The preparation required would not be far short of the preparation the parties would need to undertake for a substantive hearing on pure procedural issues. Further, the proposed change is not necessary because the Court already has discretion to consider cases in a rolled-up hearing.

In our view, reducing the test to “high likelihood” rather than inevitability would lead to greater uncertainty in applying the principle and therefore greater risk of error in refusing to grant a remedy.

Financial incentives

The Ministry of Justice proposed a wide range of amendments to rebalance the system of financial incentives so that claimants and their legal representatives have a greater financial stake in the proceedings.

The Government’s proposals include the following (this is not exhaustive):

  1. not granting a protective costs order (PCO) where a claimant has a private interest in the claim;
  2. introducing a presumption of a cross-cap when making a PCO so that the defendant receives a cap on their liability for the claimant’s costs;
  3. third party interveners should ordinarily pay for their own costs and there should be a presumption that where their intervention has resulted in the defendant or claimant incurring significant additional costs, the third party should also be liable for those costs; and
  4. making wasted costs orders available in respect of a wider range of conduct.

The PCO regime is fundamentally important in ensuring access to justice. To restrict PCOs in cases where there is no private interest would seriously discourage those who might want to bring claims of general public interest. Combined with the proposed changes to standing, there would be a serious weakening of the ability to hold the executive to account.

Further, the Court already has discretion to order a cross-cap when making a PCO (indeed, it did so recently in the QASA judicial review in which our team has been representing members of the Criminal Bar seeking to challenge the proposed Quality Assurance Scheme for Advocates), therefore the proposed change is unnecessary.

The Court has discretion whether or not to permit a third party to intervene in judicial review proceedings and to manage the cost impact of an intervention. In our experience, interveners can add value to the proceedings by ensuring that all relevant issues and evidence are before the Court when it makes its decision. Making interveners liable for the costs of proceedings (beyond their own costs) may disincentivise intervention that would have been of assistance to the Court. We take the view that costs are better managed by the Court’s existing powers to manage the impact of an intervention.

Lowering the bar for an award of wasted costs could allow legal representatives to be penalised if unsuccessful, even if they acted appropriately and in the client’s best interests by pursuing a claim. The proposed changes could therefore reduce access to justice by depriving claimants affected by matters of genuine public interest from legal recourse. Further, the amendments are not necessary given the scope of the current rules on wasted costs as well as professional conduct and ethical obligations to clients.

Other proposed changes

Other changes proposed by the Ministry of Justice include:

  1. speeding up appeals to the Supreme Court in important cases (i.e. leapfrogging);
  2. consideration of alternative mechanisms to resolve disputes relating to the public sector equality duty;
  3. the introduction of a new specialist “planning chamber” for challenges relating to major developments so that these are heard only by expert judges and using streamlined processes; and
  4. consideration of further restrictions on the extent to which local authorities can challenge decisions on nationally significant infrastructure projects in England and Wales (unless the local authority is the applicant for development consent).

Comments

In our view, the Proposed Reforms are unnecessary and there is sufficient scope within the existing rules for the Administrative Court to act where necessary so as:

  1. not to allow unmeritorious claims to proceed; and
  2. to penalise claimants and legal representatives who have acted unreasonably.

Imposing blunt rules with a view to stripping out unmeritorious claims impedes that discretion and risks impacting upon meritorious claims to the detriment of the process as a whole. Our response to the consultation can be read in full here.

We consider that administrative pressure on the judicial review process is in any case likely to ease in future. This is because the volume of cases will reduce as asylum and immigration judicial reviews are transferred to the Upper Tribunal[3]. This will allow the Administrative Court to target its resources on other types of judicial review and speed case management.

The combined effect of the Proposed Reforms (if adopted) is to make it more difficult to challenge unlawful decisions by judicial review. Reducing the likelihood of legal challenge could also lessen the incentive for public bodies to spend time and resources making rational and procedurally fair decisions, for example, by adequately documenting the decision-making process or consulting to gather information necessary to make good decisions.

To the extent that further streamlining of the process might be warranted or required, this should be done in such a way that does not inhibit the bringing of meritorious claims and preserves the role of judicial review as an important mechanism for constitutional oversight of the exercise of executive power. To that end, the Bingham Centre invited suggestions on ways to improve procedures in the Administrative Court, to save and protect public funds, in a manner consistent with the rule of law and will report in early 2014.

It is to be hoped that the Government has regard to the responses it has received on the Proposed Reforms and to any alternative ideas that those responding and the Bingham Centre might generate. We will publish an update as soon as the Government makes its conclusions known.