Thom Dyke, barrister, Great James Street Chambers
Why Cameron has got it wrong on judicial review reform
23 November 2012
It seems that David Cameron is a firm believer in the old adage that no government ever lost votes by attacking the legal profession. After LASPO’s cuts to legal aid provision, the coalition is now gunning for judicial reviews (JR).
In a speech to the CBI on Monday outlining his proposed reforms, Cameron lamented that “so many [claims] are completely pointless”, noting that administrative law had become “a massive growth industry”.
According to Cameron, the answer is threefold. Fees should be raised, limitation periods reduced, and equality impact assessments removed. But the call to cut JR claims raises two related questions. First, is there actually a need to cut the number of claims? Second, would the proposed reforms be effective in reducing claims? To the former I would answer ‘probably’ and the latter ‘certainly not’.
No one would dispute that there has been a huge increase in the number of claims – from 4,207 in 2004 to 11,200 last year. On top of this, the bill for a public body contesting a claim can be extremely costly.
After Somerset County Council had its decision to restructure library provision overturned in R (on the application of Rowe) v Somerset (2011), it was left facing a bill for its own legal costs of over £70,000, not counting the claimant’s costs which it was ordered to pay. Where claimants are publicly funded, the litigation is effectively being funded entirely out of the public purse.
Given that in 2011 only 174 cases succeeded at the substantive hearing, it is hard to argue with the proposition that a lot of unsustainable claims are being brought.
If it’s accepted that it’s legitimate to reduce the number of weak JR claims, then how effective will the proposed reforms actually be?
Take the first suggestion, of raising claim fees.
If claimants are prepared to risk the kind of costs implications which are involved in running a claim all the way to substantive hearing (see above), then the idea that they will be somehow put off by a more expensive issue fee, seems plainly absurd.
If the government is serious about changing behaviour through financial incentives, then the answer is to ensure that the Legal Services Commission is only funding those claims with a realistic prospect of success, with cost penalties for those who bring groundless claims.
The second suggested reform is that of reducing limitation periods.
As many planning lawyers have pointed out, the limitation period for statutory appeals under s.288 of the Town and Country Planning Act 1990 is already set at six weeks, with similar provisions in the Planning Act 2008. But would reducing the timeframe in which a claim can be brought, actually reduce the number or increase the quality of the claims before the court?
There is a notable shortage of statistics to show when claims are being brought in the three month limitation period. Considering that the bulk of JR claims are against immigration decisions, I suspect (although without empirical support) that most claims are brought well within the three months.
However, there is some merit in suggesting wider reform of the limitation period set down in CPR 54.5(1). This has become especially acute in light of the somewhat confusing state of affairs left after the European Court of Justice’s decision in Uniplex (United Kingdom) Ltd v NHS Business Services Authority (2010).
In Uniplex, the ECJ held that the requirement for ‘promptness’ in JR claims offended EU law principles of certainty and effectiveness of remedies. The position was confused further by the decision of the Court of Appeal in R (on the application of Berky) v Newport CC (2012).
Giving the leading judgment, Carnwath LJ held that Uniplex would only apply to remove the requirement for promptness, in cases which concerned an aspect of EU law. In any event, the court still retains a wide discretion under s.31(6) of the Senior Courts Act 1981 as to what remedy to grant.
The third reform put forward is to remove the need for an Equality Impact Assessment (EIA). Cameron claimed that, “we are calling time on EIAs. You no longer have to do them if these issues have been properly considered”.
This specious non sequitur raises the obvious point, that if a public body still needs to ‘properly consider’ equality issues, in order to discharge its Public Sector Equality Duty, then nothing is gained by scrapping the EIA. The assessment still needs to take place, albeit under the guise of ‘proper consideration’.
In a democratic society, it is right that public bodies remain are kept vigilant by the possibility that their decisions will be challenged and open to scrutiny. The risk of JR provides a powerful incentive for ensuring that those decisions are kept transparent and accountable.
After all, courts avoid merits-based review, as the role of JR is primarily to challenge the legality of the decision-making process itself, rather than the actual decision.
There is a strong case to be made that an effective and accessible JR procedure has a positive overall effect on the way in which public bodies arrive at their decisions. Perhaps rather than trying to dismantle the rule of law, David Cameron would be better off championing a growth industry, which can have a genuinely positive effect on public decision-making.
Thom Dyke is a barrister at Great James Street Chambers