Publishing its response to the consultation, Judicial Review: Proposals for further reform’, the justice secretary, Chris Grayling, said: ‘I believe in protecting judicial review as a check on unlawful executive action, but I am equally clear that it should not be abused, to act as a brake on growth.’
The consultation – which ran for two months from 6 September to 1 November last year – aimed at ‘reducing the burden imposed by judicial review’. According to the government, the latest court statistics show that there has been a significant growth in the volume of judicial reviews lodged, which by 2012 was nearly three times the volume in 2000 (rising from around 4,300 in 2000 to around 12,600 in 2012).
The consultation received 325 responses, including from legal practitioners and their professional bodies, charities and NGOs – many of whom had difficulty with much of what was proposed.
Amongst the reforms to be implemented will be the widely-opposed proposal that legal aid providers should only be paid for work carried out on applications for permission to judicially review where permission is granted, ‘to ensure that weak cases no longer receive taxpayer funding’.
Respondents to the consultation expressed concerns that the uncertainty and financial risk of this proposal for legal aid providers would impact on the number of providers willing to carry out public law work and the kinds of cases they would be willing to take on in future.
The Public Law Project argued that it would have the effect of ‘preventing meritorious cases from being brought’, and would allow ‘unfair, unlawful and unreasonable government decision-making to go unchallenged.’
But the government stood by its decision to implement the proposal: ‘[We] remain of the view that the taxpayer should not be paying for a significant number of weak judicial review cases which issue but are not granted permission by the court.’
The government also plans to ensure that Protective Costs Orders (PCOs) in non-environmental judicial reviews are only used in ‘exceptional cases’.
Concerns were raised by respondents to the consultation that any constraints on the courts’ powers to make PCOs would deter claims that would serve the public interest, as claimants will be put off by the risk of an adverse costs order if they lose.
The government attempted to appease such concerns by stating that it ‘does not intend to remove the availability of PCOs entirely in non-environmental cases’. But the consultation response added: ‘The government intends to ensure that a strict approach is taken to deciding whether it is in the “public interest” that the issues in the claim are resolved.’
Outlining the reforms, Chris Grayling said: ‘In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool, or simply to delay legitimate proposals. That is bad for the economy and the taxpayer, and also bad for public confidence in the justice system.’
‘Some of these measures may not be popular with those who benefit from the status quo, but I am confident that they support economic growth for our nation’s future, promote fairness for the taxpayer, and protect access to justice for all.’
An attack on the rule of law
However, lawyers and campaigners have warned that curbs on judicial reviews could lead to unlawful decisions going unchecked.
Civil rights and judicial review specialists Deighton Piece Glynn solicitors described the results of the consultation as the government ‘taking a sledgehammer to the rule of law.’
The Public Law Project (PLP), in its response to the consultation, urged the government to take the proposals no further. Following the publication of its response, a spokesperson for PLP said: ‘We think the Government’s plans in this area are likely to impact very negatively on access to justice, and we are carefully considering the detail.’
Labour MP and shadow justice secretary Sadiq Khan said the government’s judicial review reforms ‘will do nothing to improve justice’. The former lawyer continued: ‘Instead, it’s about protecting the Government and their big corporate friends’ bad decisions from being challenged. It shows, once again, whose side they are on.
‘Judicial review is a crucial constitutional check and balance on those in power and should not be messed around with for politically motivated reasons. These changes are an attack not only on the best campaigning organisations and individual citizens’ rights, but also on the rule of law and good governance.’
The reforms will be implemented through the Criminal Justice and Courts Bill, also published by the government yesterday.
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