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Restricting the judicial review process is a constitutional matter and has nothing to do with cutting red tape
It’s not a good time to be an environmental lawyer - or indeed any lawyer interested in exercising the right to challenge public bodies.
The latest proposals to “get a grip on the massive growth industry” of judicial review (JR) include halving the time limit for applying for a review of a planning decision and removing the possibility of oral renewal if an application is ruled “totally without merit”. This compounds proposals to cut legal aid for JR still further.
Where do these changes leave lawyers relying on JR to protect the rights of individuals and the environment? In recent years WWF has relied on a little-known instrument called the Aarhus Convention to raise the benchmark for ‘participatory rights’. This establishes standards for access to information, participation in decision-making and access to justice. The UK ratified the convention in 2005 and provisions on access to justice were imported into EU environmental law.
As the convention concerns pervasive rights it was soon woven into the heart of the argument in many JRs, thus making it ripe for attack. Nowhere has it had more influence than on costs in environmental cases, forcing the Government to amend the law to limit adverse costs exposure in respect of environmental JRs to £5,000 for individuals and £10,000 for groups.
The Government is braced for a torrent of “time-wasting” cases, but the fact is that JR remains an expensive and risky business. Although adverse liability is now capped, a claimant still has to cover their own legal fees and, because the success rate of environmental JRs is extraordinarily low, few lawyers are able to conduct cases on conditional fee arrangements. The time and cost implications of JR are such that WWF takes one case a year at most, and that is unlikely to change much under the new costs regime.
The fizz had barely gone out of the metaphorical champagne before the Government announced changes in relation to time limits, fees and the availability of oral hearings. While the Government maintains JR “holds up development”, we have yet to see any evidence to support the proposition that there is a relationship between JRs and “the stifling of economic growth”.
Furthermore, the Government seems impervious to the views of civil society. Only a fifth of respondents to the recent JR consultation paper supported the proposal to shorten the time limit in planning cases and, although most respondents opposed the proposals, the secretary of state went ahead anyway.
It is fair to say the future of JR looks bleak, but it will be worse still if the UK opts to leave the EU. We could wave goodbye to environmental legislation holding the line.
JR cases are not road traffic matters, they concern complex arguments of unlawful behaviour by public bodies and remain a key mechanism for citizen and environmental protection. Restrictions are of constitutional importance and should not be confused with measures to cut red tape or costs.