Justice Secretary announces quadrupling of some legal fees and tighter restrictions on time limits for judicial reviews
Justice Secretary Chris Grayling has unveiled controls aimed at tackling judicial reviews, BBC News reports.
BBC News quoted Grayling as saying: "We are changing the system so it cannot be used anymore as a cheap delaying tactic."
According to the Guardian, the detailed changes announced by Grayling include:
• Introducing a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down. It is currently £60.
• Banning people from seeking a hearing in person if their initial written application has been ruled as totally without merit.
• Halving the time limit for applying for a judicial review of a planning decision from three months to six weeks.
• Reducing the time limit for applying for a judicial review of a procurement decision (usually involving disputes over contracts awarded) from three months to four weeks.
The new rules are expected to come into effect this summer.
Labour's justice spokesman, Sadiq Khan, criticised the changes and warned that they "will result in an increased number of unlawful decisions going unchecked and local charities, residents associations and communities groups will be squeezed out, leaving only the well-resourced, powerful organisations able to bring judicial reviews."
You can read the government's official paper on the judicial review reforms at https://consult.justice.gov.uk/digital-communications/judicial-review-reform/results/judicial-review-response.pdf.
A separate impact assement is available at https://consult.justice.gov.uk/digital-communications/judicial-review-reform/results/jr-ia-response.pdf.
Reproduced below is a useful research note on the reforms from the House of Commons Library:
____________________________________
Judicial Review: Government reforms
Standard Note: SN/HA/6616
Last updated: 23 April 2013
Author: Alexander Horne
Section Home Affairs Section
This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.
This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.
In December 2012, the Government published a consultation paper entitled Judicial Review: Proposals for Reform (CP25/2012) which ran between 13 December and 24 January 2013. The consultation sought views on a package of measures to stem the growth in applications for judicial reviews.
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
In April 2013, the Government published the response to the consultation, indicating that a number of measures would be introduced. These included:
• A reduction in the time limits for bringing a claim from three months to six weeks in planning cases and 30 days in procurement cases;
• The introduction of a new fee for an oral renewal hearing, where the claimant does not accept a refusal of permission on the papers, and asks for the decision to be reconsidered at a hearing (an "oral renewal"); and
• The removal of the right to an oral renewal where the case is assessed as totally without merit on the papers.
This note provides further detail about the consultation exercise and some of the responses to it.
Contents
1 Background
2 Consultation on Reform
3 Responses
4 The Government's Proposals
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were 'right', as long as the right procedures have been followed. The court will not substitute what it thinks is the 'correct' decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way. [1]
Traditionally, there have been three grounds for bringing judicial review proceedings:
• illegality: for example, the decision was not taken in accordance with the law that regulates it or goes beyond the powers of the body;
• irrationality: for example, that it was not taken reasonably, or that no reasonable person could have taken it;
• procedural irregularity: for example, a failure to consult properly or to act in accordance with natural justice or with the underpinning procedural rules. [2]
Grounds for review have developed in recent years to take into account the changing legal landscape and also take account of other statutory duties. Further details of these developments can be found in a historic Library Research Paper, Judicial Review: A Short Guide to Claims in the Administrative Court (although it should be stressed that anyone thinking of pursuing a legal claim should seek professional legal advice). [3]
In December 2012, the Government launched a consultation entitled Judicial Review: Proposals for Reform (CP25/2012). The consultation ran between 13 December and 24 January. The consultation webpage explained that:
The Government is seeking views on a package of measures to stem the growth in applications for judicial reviews. The measures aim to tackle the burden that this growth has placed on stretched public services whilst protecting access to justice and the rule of law. The engagement exercise seeks views on proposals in three key areas; reducing the time limits for bringing a judicial review relating to procurement or planning, bringing them into line with the appeal timetable which already applies to those cases.
It also seeks views on removing the right to an oral renewal where a judge refuses permission where there has been a prior judicial process, or where the claim was judged to be totally without merit. The right to appeal to the Court of Appeal would be on the papers. Finally, it seeks views on the introduction of a new fee for an oral renewal so that fees charged in Judicial Review proceedings better reflect the costs of providing the service. If the oral renewal is successful, the fee for post permission stages would be waived. [4]
The consultation had been preceded by a speech by the Prime Minister in which he had promised to crack down on "time wasting" caused by legal challenges. [5]
The consultation paper set out the legal framework and the remedies available:
15.Judicial Review proceedings are governed by section 31 of the Senior Courts Act 1981 and the procedure is set down in the Civil Procedure Rules (CPR), and in particular Part 54 (and the accompanying Practice Directions). They are generally heard in the Administrative Court, which forms part of the Queen's Bench Division of the High Court. Usually, they are heard by a High Court Judge, but on occasion may be heard by the Divisional Court (comprising two Judge
16. Judicial Review is concerned with the lawfulness of the decisions taken. It is not the Court's role to substitute its own judgment for that of the decision maker. Where the Court concludes that a decision was not taken lawfully it may make one of the following orders:
• a quashing order, setting aside the original decision;
• a mandatory order, requiring the public body to do something or take a particular course of action;
• a prohibiting order, preventing a public body form doing something or taking a particular course of action;
• a declaration, for example, that a decision is incompatible with the European Convention on Human Rights; and
• an injunction, for example, to stop a public body acting in an unlawful way.
In his foreword to the consultation, the Lord Chancellor, Chris Grayling, indicated that
The intention of these reforms ... [is] to make sure that weak or hopeless cases are filtered out at an early stage so that genuine claims can proceed quickly and efficiently to a conclusion. In this way we will ensure that the right balance is struck between maintaining access to justice and the rule of law on the one hand, while reducing burdens on public services and removing any unnecessary obstacles to economic recovery on the other.
The measures in this paper are simple and proportionate procedural reforms that can, I believe, be introduced quickly. We are considering whether these need to be supported by a programme of more wide ranging reforms.
Responses from practitioners and legal academics were broadly negative. Mark Elliot, (Reader in Public Law, University of Cambridge) argued that:
These ostensibly dry proposals do not appear to amount to a "war" on judicial review, not least because there is no attempt to immunize any categories of Government decisions against all judicial scrutiny. But this does not mean that the proposals are trivial. Shorter time limits will undoubtedly make it harder for some challenges to be made, given the time needed to put together some applications. Meanwhile, reducing the scope for challenging initial refusals of permission to seek judicial review arguably assumes that the initial stage is more robust than it actually is. [6]
Barrister, Adam Wagner, questioned some of the underlying assumptions made in the consultation: He claimed that:
[T]here is no analysis as to why there are so many claims compared to the 1970s. The underlying assumption seems to be that more challenges to public authorities is bad. But why so? There is at least a case for the increase being due to the increase in the size of the state, the growth in EU and human rights law and the huge increase in immigration. Surely any major reforms which seek to reduce something must be supported by at least some substantive analysis of why that thing has increased. [7]
Some respondents questioned whether the statistics provided in the consultation supported the Government's case. The Government had acknowledged that the main growth in judicial review claims had been in the field of asylum and immigration and that it had introduced proposals in the Crime and Courts Bill to allow all immigration, asylum or nationality Judicial Reviews to be heard in the Upper Tribunal. [8] Nonetheless, the consultation noted that:
There has been a significant growth in the use of Judicial Review to challenge decisions of public authorities, in particular over the last decade. In 1974, there were 1609 applications for Judicial Review, but by 2000 this had risen to nearly 4,250, and by 2011 had reached over 11,000.
The consultation also provided statistics on success rates:
31. In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted. Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year).
32. By the time the case reaches a substantive hearing, case outcomes are more balanced. In 2011, 396 applications for Judicial Review were disposed of, and the claimant was successful in 174 of them. But even where the claimant is successful, it may only result in a pyrrhic victory with the matter referred back to the decision-making body for further consideration in light of the Court's judgment.
Varda Bondy (Director of Research, Public Law Project) and Professor Maurice Sunkin published an article entitled: Judicial review reform: Who is afraid of judicial review? Debunking the myths of growth and abuse. This made use of earlier empirical research carried out by the University of Essex and the Public Law Project, which they described as "probably the most comprehensive independent information on the use and impact of judicial review in England and Wales in recent years." [9] They indicated that their intention was not to provide a detailed response to the consultation, but rather "to question the evidence-base for the proposed reforms and to propose that if the government is genuinely concerned to relieve pressure on the courts and hard-pressed public bodies, these reforms are not the way to go and may well have the reverse effect." [10]
The Immigration Law Practitioners Association said, amongst other things, that:
There is little or no consideration of the fact that significant numbers of judicial review claims settle pre- and post-permission, suggesting that far from being unmeritorious, or deliberate 'delaying' tactics, the claims were properly and responsibly brought and conducted, and that the parties managed to achieve a resolution of the claim without using further court time and resources. [11]
On 23 April, it was announced that the Government would be implementing many of the reforms discussed in the consultation paper. The Ministry of Justice indicated that it had received 250 responses to the consultation. The Ministry of Justice published a consultation response which summarises the responses received and sets out the reforms it intends to take forward and those proposals it has decided not to pursue.
• Introducing a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down. It is currently £60.
• Precluding claimants from seeking a hearing in person if their initial written application has been ruled as totally without merit on the papers.
• Changing the time limit for applying for a judicial review of a planning decision from three months to six weeks.
• Reducing the time limit for applying for a judicial review of a procurement decision from three months to 30 days.
The consultation response indicated that:
We have however been persuaded not to pursue two of the original proposals: clarifying the rules on time limits in cases where there are continuing grounds, and removing the right to an oral renewal where there has been a prior judicial hearing on substantially the same matter.
The paper also provided some information on implementation:
Next Steps
22. The Government intends to invite the Civil Procedure Rules Committee to consider the necessary changes to the Civil Procedure Rules to give effect to the reforms to time limits and the procedure for applying for permission.
23. We will bring forward secondary legislation for the fee for an oral renewal in due course.
Chris Grayling was reported to have said that "we are changing the system so it cannot be used anymore as a cheap delaying tactic." [12]
Labour's Shadow Justice Minister, Sadiq Khan, was reported to have responded that the reforms would result in more "unlawful decisions going unchecked." Adding
No government is above the law. It is essential that where a government or other public body has acted unlawfully a judge can hold them to account. That's why ministers need to guarantee that these proposals will not insulate government decisions from legal challenge or remove this crucial check and balance on their power [13]
(End)
[1] See: Judiciary of England and Wales, Judicial Review
[2] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
[3] See also: Treasury Solicitor, The Judge Over Your Shoulder, 4th Edition, 2006
[4] See: https://consult.justice.gov.uk/digital-communications/judicial-review-r…
[5] BBC Online, "PM to crack down on 'time wasting' appeals", 19 November 2012
[6] M. Elliott, 'Judicial review – why the Ministry of Justice doesn't get it' UK Const. L. Blog (16th December 2012) (available at http://ukconstitutionallaw.org)
[7] A. Wagner, 'Quicker, costlier and less appealing: plans for Judicial Review reform revealed', UK Human Rights Blog, 13 December 2012
[8] See also, BBC Online, 'How common are 'time-wasting' appeals against government?', 19 November 2012
[9] V. Bondy and M. Sunkin, 'Judicial Review Reform: Who is afraid of judicial review? Debunking the myths of growth and abuse.' UK Const. L. Blog (10th January 2013) (available at http://ukconstitutionallaw.org)
[10] Ibid
[11] Guardian, 'Legal fee rises will stem 'soaring' judicial review cases, says MoJ', 23 April 2013
[12] BBC Online, "Judicial Review controls unveiled", 23 April 2013
[13] Guardian, 'Legal fee rises will stem 'soaring' judicial review cases, says MoJ', 23 April 2013