Government’s planned judicial review revamp ‘misses the point’

Government plans to overhaul the judicial review process to boost growth and unburden clogged-up courts have “missed the point”, according to public law lawyers.

David Cameron
David Cameron

Prime Minister David Cameron made a speech to the Confederation of British Industry this morning, outlining how the Coalition plans to cut the three-month time limit for applications to prevent tactical delays, halve the number of refusal challenges from four to two and increase the cost of bringing a judicial review.

Justice Secretary Chris Grayling said the idea was to reduce “ill-conceived” applications to unburden clogged-up courts.

This is after the number of applications increased from 160 in 1975 to 11,200 last year, with one in six applications granted permission to be heard in 2011.

However, some lawyers believe that despite several recent high-profile judicial reviews of Government decisions, such as the GCSE marking fiasco and the West Coast Main Line tender, the real impact of the overhaul would not be on business, but on immigration and asylum.

Adam Chapman, partner and head of public law at Kingsley Napley, said: “The Prime Minister talked about ‘cutting back on judicial reviews’ and the need to stop completely pointless cases being brought. In a speech about barriers to the UK’s economic competitiveness overseas, this was a peculiar target to choose.

“The PM is missing the point – it is a myth that judicial review is stopping the Government from proceeding with policies to help boost the economy.

“Although there’s been significant growth in the number of judicial review cases brought, the increase has been in cases about immigration and asylum – it’s nothing to do with stopping the Government from taking steps to assist business. In non-immigration and asylum cases, the number of cases has actually gone down since 2006.”

Hogan Lovells public law of counsel Charles Brasted said the firm represents clients on both sides of judicial reviews and that the importance of the system in ensuring Government decisions are fair and lawful must be paramount.

He agreed with the Prime Minister and justice secretary that the courts are clogged up with judicial reviews and that the pressure on the courts is enormous. However, he said that high-profile commercial and planning judicial reviews, such as the high-speed rail scheme HS2, the Olympic Stadium legacy and the West Coast Main Line tender, are a very small proportion of the total number.

Brasted said there was a “mismatch” between the recognition of clogged up courts and the economy-boosting logic of the Government’s proposals.

Brasted said: “In terms of quantity, 95 per cent or more of JRs are non-commercial, such as housing, immigration and prisons. But David Cameron’s speech was all about unlocking economic potential and driving infrastructure – that is a completely different issue to too many immigration JRs.

“Clearly if it’s about improving efficiency that is all well and good; providing a balanced system is a crucial constitution in safeguarding everybody’s legal rights and complying with the European Convention of Human Rights.”

Criticism from organisations such as the Campaign to Protect Rural England have called the proposals undemocratic, claiming that the current judicial review system is already stacked against local people.

Brasted said changes in the fees of bringing a judicial review would not stop big set-piece cases being brought because of the value of the tender at stake.

For RPC head of commercial litigation Geraldine Elliott the proposed changes represent “a misguided attempt to save money”. She said: “Our legal system needs to have a proper mechanism for parties to be able to challenge decisions made by public bodies through the courts. Reducing the scope for raising serious issues with the court is excessive and places a further stranglehold on a process where there are already adequate safeguards in place, not least a court-led initial screening process.”

However, Grayling said: “The Government is concerned about the burdens ill-conceived cases are placing on stretched public services as well as the unnecessary costs and lengthy delays which are stifling innovation and economic growth.

“We plan to renew the system so that judicial reviews will continue their important role but the courts and economy are no longer hampered by having to deal with applications brought forward even though the applicant knows they have no chance of success.”