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Reforming judicial review procedures will not lead to a better system but will punish those who need it most
There are five reasons why the proposed reform of judicial review procedures is misguided. First, it is based on a false premise. The stated object of the exercise is to “speed up development and boost economic growth”, where Prime Minister David Cameron describes judicial review as a “massive growth industry” in which the number of applications has tripled since 1998 to around 11,200 in 2011. However, this figure conceals that the majority of these challenges have been in immigration and asylum decisions. The number of non-immigration applications have been largely static for some time.
Second, reducing the time for bringing challenges is unlikely to reduce the number of challenges brought, but will simply increase the risk that preparation of the case will be rushed and ill-informed. At the moment, the pre-action protocol requires claimants to send a letter before claim outlining their argument and inviting a response. This gives authorities the opportunity to minimise costs by conceding quickly where appropriate, and also the chance to explain to claimants why their case is misconceived. If the time limits for seeking judicial review are reduced, there is unlikely to be time to adhere to the protocol in any meaningful way. This will not prevent claimants from issuing, and it will do nothing to steer them away from hopeless arguments.
Third, the proposal to discourage litigation by increasing court fees is unlikely to stop challenges by commercial interests such as those behind the West Coast Main Line or Olympic Stadium legacy challenges. To the extent that they will bite on private individuals or local interest groups, they are however difficult to reconcile with Article 9 of the Aarhus Convention and Art 10a of the EIA Directive, which provide that costs of environmental litigation shall not be “prohibitively expensive”. Aarhus has already led to changes in practice in the administrative court in the field of protective costs orders. Cameron’s proposal cuts across that trend. In this regard, although we have not yet been told what the increase would be, the fact that it is designed to put people off might well lead the Aarhus Compliance Committee or the ECJ to decide that the new fees are “prohibitively expensive”.
Fourth, the proposals proceed on the basis that, because five out of six cases are “hopeless”, judicial review inevitably leads to excessive delay. However, truly hopeless or unmeritorious cases are sifted out relatively quickly at the permission stage. Cases should not get beyond that stage unless they have at least some germ of merit. And while it is true that the waiting time for a substantive hearing in London can be lengthy, many parties in planning judicial reviews are finding they can get quicker hearings if they are willing to transfer their cases to the regions.
Finally, the proposals overlook the fact that claimants are sometimes right. Cameron’s reforms are a blunt instrument, the effects of which will fall equally on claimants with good and hopeless cases. As the recent challenge to the West Coast Main Line tender demonstrates, there is a role for judicial scrutiny of government action.