Before Christmas, the Government published a consultation paper called Judicial Review: Proposals for Reform. The consultation process ends today, and the Government will then decide whether to press ahead with its proposals, amend them, or abandon them. The proposals have been very widely criticised, including by the Bingham Centre for the Rule of Law and the Cambridge Centre for Public Law (whose responses to the consultation I helped to write) and the Public Law Project. If you’re studying Public Law or Administrative Law, you might well want to look at the Consultation Paper and at some of those responses. This post, on the other hand, aims only to give a brief overview of what all the fuss is about.
What is judicial review?
Judicial review enables courts to ensure that Government decisions are legal, procedurally fair and rational. Legality requires that all relevant considerations are taken into account and irrelevant considerations ignored. Procedural fairness requires all relevant interests to be properly addressed and assessed, thus gaining more information of a decision’s likely effect. Rationality seeks to avoid arbitrary and illogical decisions. The Public Law Project has a brief guide to judicial review on its website.
Why is judicial review important?
Judicial review serves a number of crucial functions. It allows individuals to challenge Government decisions – about matters such as asylum, immigration, planning and education – that may have a profound impact on their lives. It is also an important means by which the Government can be held to account – not least by ensuring that it exercises only those powers given to it by Parliament, and that it exercises those powers fairly and reasonably. Judicial review therefore upholds the rule of law: it ensures that Government occurs in a lawful manner. The absence of oversight of Government by an independent and free judiciary is the hallmark of a tyrannical society.
What is the Government proposing?
The Government wants to reduce access to judicial review. In particular:
- It thinks that in some types of cases (planning cases and cases involving the award of Government contracts) people should have only 30 days or six weeks to challenge a decision. That compares to a current time limit for judicial review of three months – and time limits in many other areas of law of up to several years.
- The Government also wants to make it harder to get permission to bring a judicial review claim. At the moment, claims can only be brought with the permission of a judge – and that decision is taken “on the papers”. In other words, the judge considers whether the person challenging the decision appears to have a viable case, and if so, gives permission for it to continue. It is then possible to try again, this time at an oral hearing – and, surprisingly often, permission is granted at that oral hearing. The Government, however, wishes to reduce the circumstances in which it is possible to get this sort of oral hearing.
- And the Government wants to make it more expensive to seek judicial review. In particular, in cases where permission is initially refused and then reconsidered at an oral hearing, a fee will have to paid by the person challenging the decision at that stage (whereas at present, there is no additional fee at that point).
Why have these proposals attracted so much criticism?
All three of the proposals are problematic:
- Reducing the time limit to 30 days or six weeks gives people very little time to decide whether to bring a challenge. That might mean that some (good) cases that would have been brought will not see the light of day. Alternatively, it might actually mean that more cases will be brought – because people will rush to start judicial review proceedings (so as not to get caught out by the short time limit) rather than trying to resolve the matter in other, cheaper, quicker ways. That cuts directly across the Government’s objective of reducing the number of judicial review cases.
- Making it harder orally to challenge refusals of permission is also problematic. Judges often refuse permission “on the papers”, only for another judge – following an oral hearing – to grant permission to bring a judicial review claim. This suggests that judges often get it “wrong” when looking at cases “on the papers”. And this, in turn, suggests that oral hearings serve a crucial role in ensuring that viable cases do not get filtered out right at the start.
- Finally, the objection to imposing a new fee is that it may inhibit access to justice. There is something particularly troubling about increasing court fees in order to make access to the courts more difficult – which is arguably the purpose here.
Why does the Government want to do this?
The Government argues that judicial review gets in the way of efficient decision-making: that Ministers are doing their best to make decisions and get things done, but that nitpicking judges are constantly holding things up by picking holes in the procedures that have been followed. This is a very weak argument. Indeed, there is evidence to suggest that judicial review – and even the prospect of judicial review – may improve the quality of decision-making. The impression is given that the Government does not like judicial review – because it is an irritant to Ministers who would rather not be troubled by judges – and then sets out to make a case against it. That case fails to convince because it is based almost exclusively upon assertions and anecdotal evidence.
What is the broader objection?
The broader objection to the Government’s proposals is that they play fast and loose with the constitution, by failing to respect the fact that courts have a legitimate role to play in ensuring that Government acts in accordance with the rule of law. Here, by way of conclusion, is what Sir Jeffrey Jowell and I wrote in the response submitted to the Government on behalf of the Bingham Centre for the Rule of Law:
“The rule of law does not merely require that judicial review be available in some notional, theoretical sense. It requires that individuals have a real and adequate opportunity to challenge Government decisions before independent courts or tribunals. The proposals in the Consultation Paper fall to be evaluated in that light. The opportunity to challenge official decisions in different ways has been one of the significant contributions of this country to the rule of law over the past fifty years. It has been fashioned both by parliament and the courts. It has surely improved not only the justice but also the quality of the decisions themselves. This is because our carefully crafted principles of good administration require decision-makers to have proper regard both to all relevant legal considerations and to the interests of the public which, after all, they are there to serve. The need for efficient and expeditious decision-making is of course important. However, it must be balanced against the need for legal and other forms of accountability, which should not be lightly diminished.”
What else can I read?
If you don’t want to tackle the detailed responses mentioned at the beginning of this post, try the following short pieces instead:
- Jowell, “Diminishing judicial review will reverse 50 years of legal progress”
- Thornberry, “This assault on judicial review threatens Britons’ access to justice”