Monday, 19 November 2012

Cut the crap ~ We are at economic war ... David Cameron and Judicial Review


The Prime Minister has launched what will be seen as a further attack on access to justice.  In a speech to the Confederation of British Industry, Mr Cameron said that the nation is in the "economic equivalent of war" and that he wishes to rein in certain processes which he considers are hindering infrastructure projects and economic growth.  He listed some of these "inconveniences" - impact assessments, consultations, audits, reviews, EU procurement rules, assessing sector feedback.  "If Christopher Columbus had an Advisory Committee he would probably be still in dock", said Cameron.  As for Judicial Review, Mr Cameron expressed the desire to cut back on the number of applications by imposing tighter time limits (already only 3 months), higher application fees and reducing the number of opportunities to argue about the court's permission to allow an application to proceed.  

Law Society Gazette - 19th November 2012 - Fury and Bewilderment at plans to curb judicial reviews

Ministry of Justice - 19th November - Unclogging the Courts  where the Justice Secretary states:

'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. We will publish our proposals shortly.'

It would be foolish to deny that there are sometimes many hurdles to be overcome before particular projects can proceed and, in some areas, Parliament has imposed particular duties such as those arising from the public sector equality duty in the Equality Act 2010 s.149.  Where this duties applies, the public body would have to be able show that it has duly "had regard to" the need to advance equality and eliminate discrimination etc. - (see e.g. TUC - Equality Duty Toolkit - October 2011).  One of the more usual ways of showing this is by an equality impact assessment though, strictly speaking, such an assessment is not specifically required by the Act.  It appears that Mr Cameron views this as "bureaucratic nonsense" and he remarked that the government is "calling time" on equality impact assessments - (Local Government Lawyer 19th November).
Christopher Columbus - replica ship in dock

Judicial Review is the process by which the High Court (or, sometimes, the Upper Tribunal) is able to review a decision made by a decision-maker such as a government Minister or a body exercising public duties.  The court is NOT concerned with the MERITS of the decision but it is concerned with the LEGALITY of the decision.  Essentially, judicial review enables those affected by the decision to argue that it is somehow wrong in law - e.g. because the decision is beyond the powers given to the decision-maker by Parliament.  The various grounds for challenge are essentially in the body of law referred to as "Administrative Law."  The grounds were summed up by the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1984] AC 374 as illegality; irrationality and procedural impropriety.  Since October 2000, the Human Rights Act 1998 has added to that list by requiring public authorities to act compatibly with human rights - (section 6).  

The process of judicial review grew out of the historic "supervisory jurisdiction" which the High Court acquired from the earlier Court of Queen's (King's) Bench.  Under this jurisdiction, the High Court is able to act in six ways: quashing order (used to be called certiorari), prohibiting order (formerly prohibition), mandatory order (formerly mandamus), declaration (to state what the law is), injunction and damages (particularly where there is a breach of human rights).

Judicial review is a remedy of last resort since it may not be used where there is another remedy such as an appeal.  Applications are already subject to a strict 3 month time limit which is rarely waived.  The High Court's permission to proceed is required (which should weed out applications which have little chance of success) and the applicant must have standing to bring the review (e.g. by being personally affected by the decision).  The process is complicated and certainly not cheap and, once permission is obtained, the case may take some time before it is decided and, even after that, there may be appeals. The more frequent areas where judicial review is used are in immigration and asylum cases and, sometimes, in relation to decisions of Coroner's Courts.  Interestingly, the government has only recently decided NOT to bring in an appeals process from Coroners and so judicial review remains the only route of challenge. 

Lord Bingham once wrote (The Business of Judging: Selected Essays and Speeches - January 2000) that two key dates in the modern history of Judicial Review were 1977 and 1984.  In the former year, quite modest changes in the procedure for seeking judicial review: “transformed judicial review from the part-time activity of the few to a mass sport for the many… In the process an old truth was demonstrated: that with courts, as with airlines, a demand only becomes evident when the means exist to meet it.”

Perhaps that quotation would be music to Cameron's ears but the late Lord Bingham would undoubtedly have been among the first to recognise the vital importance of judicial review in a democratic nation.  In his final book "The Rule of Law" Lord Bingham set out eight principles inherent in the phrase "rule of law."  These included his fourth principle:

"Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably" - see The Guardian 7th September 2011

Here is the true constitutional purpose of judicial review which requires even government itself and powerful Ministers to adhere to the law.

The process of judicial review has undoubted value as exemplified by the recent West Coast line bidding fiasco (BBC 3rd October) where, interestingly, it was the EU procurement process which gave Virgin Trains time to launch their application for judicial review of the bidding process (The Guardian 3rd October).  In the event, the judicial review did not proceed but the possibility forced the government to re-examine the situation.  The government decided to scrap its decision to award the franchise to FirstGroup; some civil servants were blamed and a Minister was reshuffled to Overseas Aid.  The bids cost in the region of £40m and were submitted to government some 15 months prior to the flawed decision.

However inconvenient it may be to impatient Ministers, judicial review is essential in a democracy and access to it should not be restricted further but there is surely scope to reduce the length of time applications take before final decision though, like most things, reducing this time frame requires significant resources which Ministers are unwilling to apply to the judicial system.  In this way, access to justice for the citizen receives another blow under the cover of the economic situation.

The Ministry of Justice has said that a "public engagement exercise" will be "carried out shortly - Unclogging the Courts .  Whether that exercise differs from "consultation", and if so how, remains to be seen.

: Some Reference materials :

Senior Courts Act 1981 section 31

Civil Procedure Rules Part 54

Law Commission 1994 No. 226 - Administrative Law: Judicial Review and Statutory Appeals - The procedure known as Application for Judicial Review was introduced in 1977 as a result of the Law Commission report (Remedies in Administrative Law 1976 No. 73).  In 1994, the Law Commission made further recommendations with a view to ensuring that judicial review operated within an effective procedural framework.

Web Journal of Current Legal Issues [2000] 5 Web JCLI - The New Rules of Procedure for Judicial Review where Tom Cornford (University of Essex) looked at changes made when judicial review was brought within the Civil Procedure Rules Part 54.  Order 53 of the Rules of the Supreme Court, which contained the rules of procedure for judicial review, was been abolished and replaced by Part 54 of the Civil Procedure Rules. The Rules bring judicial review fully within the framework of the CPR and also implement certain recommendations of the Bowman Committee’s Report on the Crown Office List. The result is a procedure which is in most respects the same as its predecessor. There are, however, also some significant changes, most notably with respect to the permission stage and third party intervention. The latter change is an advance, but the former represents a further tipping of the scales in favour of defendant public authorities.

Public Law - Guide to Judicial Review Procedure - good reading here for those wishing to see some of the detail of the hurdles which applicants for judicial review must already surmount

Administrative Law Bar Association October 2010 - Nigel Griffin QC - Introduction to judicial review

Introduction to Judicial Review - a paper by Charles George QC

Judicial and Court statistics 2011 - see page 65 for data regarding the number of judicial review applications in 2011.

Full Fact 19th November - Has there been a huge growth in the number of judicial reviews?  Here, Full Fact looks at the statistical data.

: Media Coverage :

The Guardian 19th November - David Cameron plans clampdown on judicial review rights where Patrick Wintour and Owen Bowcott point out that Cameron's reform will affect ALL judicial review applications and not merely those connected with planning matters

The Guardian 19th November - Diminishing judicial review will reverse 50 years of legal progress where Jeffrey Jowell QC looks at how judicial review has developed since the 1960s and how it has been copied by many other States particularly in the British Commonwealth.  Jowell argues that judicial review is fundamental to the rule of law. 

: Blogs :

Charon QC 19th November - Breaking from the MoJ - Trial by Ordeal to unclog the courts

UK Human Rights blog 19th November - A War on Judicial Review?

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