Sunday, 8 September 2013

Judicial Review ~ Further proposals ~ Sir Stephen Sedley

The Judicial Review Consultation:

In addition to its further consultation on Transforming Legal Aid (previous post), the Ministry of Justice is consulting on proposals for further reform of judicial review - Consultation Description and Proposals

These proposals follow those in the consultation Judicial Review – Proposals for Reform, which ran from December 2012 to January 2013 and set out some of the background and the Government’s concerns about the use of judicial review.  The foreword to that document said:
“we are considering whether these proposals need to be supported by a programme of more wide ranging reforms.”
The present consultation follows on from the reforms implemented as a result of that consultation, setting out further proposals and areas in which action might be taken, on which the Government seeks views.

This consultation runs for 8 weeks; the deadline for responses is midnight on the 1 November 2013.  

The Judicial Review consultation opens by stating:

'Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. The Government will ensure that judicial review continues to retain its crucial role. The Government is though concerned about the use of unmeritorious judicial reviews to cause delay, generate publicity and frustrate proper decision making. This is bad for the economy and bad for the taxpayer.'

'In December 2012 the Government launched a consultation, Judicial Review: proposals for reform, which sought views on a series of proposals to reform judicial review.  On 23 April 2013 the Government published its response to the consultation setting out the reforms it intended to take forward.  They were: shortening the time limit for bringing a judicial review from three months to six weeks in certain planning cases and to thirty days in certain procurement cases, bringing them into line with the time limits for statutory appeals;  removing the right to an oral renewal where the case is assessed by a judge as totally without merit on the papers; and introducing a fee for an oral renewal hearing, where permission has already been refused by a judge on the papers but the claimant asks for the decision to be reconsidered at a hearing.

The first two of these reforms were given effect on 1 July 2013 by an amendment to the Civil Procedure Rules.  The Government will seek to implement the fee change as soon as practicable. The Government will also revisit whether judicial review fees are set at the appropriate level as part of a wider review of fees across the civil courts. These procedural measures are targeted at unmeritorious cases, the aim being to filter them out quickly and at an early stage, while ensuring that arguable claims can proceed to a conclusion without delay.

Work has recently been completed to transfer immigration and asylum judicial reviews from the Administrative Court to the Upper Tribunal. This should significantly reduce the workload of the High Court and bring about major efficiencies to the system.

These measures are an important step forward. However the Government considers that more needs to be done to prevent abuse of judicial review.   The Government is concerned that there has been significant growth in the use of judicial review, and that this is sometimes used as a delaying tactic in cases which have little prospect of success. There are more than twice as many applications for judicial review as there were ten years ago. Whilst much of the growth has been in immigration and asylum cases, those cases take up court and judicial resources with consequences for the handling of other cases. Unmeritorious cases in other areas can delay wider government reforms and the progress of major infrastructure projects which are intended to stimulate growth and promote economic recovery. The Government is also concerned that legal aid resources should be properly targeted at those judicial review cases where they are needed most, if the legal aid system is to command public confidence and credibility.'

The consultation paper may be directly accessed via  Judicial Review: proposals for further reform consultation, 392.6 kB (PDF document.

Grayling's political views published:

The Secretary of State for Justice chose to reveal to the public his political attitude to judicial review - Daily Mail 6th September - The judicial review system is not a promotional tool for countless Left-wing campaigners, says Chris Grayling - where Grayling wrote:

'Of course, the judicial review system is an important way to right wrongs, but it is not a promotional tool for countless Left-wing campaigners. So that is why we are publishing our proposals for change.
We will protect the parts of judicial review that are essential to justice, but stop the abuse.

Britain cannot afford to allow a culture of Left-wing-dominated, single-issue activism to hold back our country from investing in infrastructure and new sources of energy and from bringing down the cost of our welfare state.

We need to make decisions quicker and respond to issues more quickly in what is a true global race.

The Left does not understand this, and believes that our society can do everything for everyone, and that those who work hard to get on in life should pick up the tab.

They want more money for public services, but at the same time to be able to halt the investments which can deliver the wealth that pays for those services.

In proposing these changes, I will no doubt be accused of killing justice and destroying Magna Carta. Although as the great old lady of British law is approaching her 800th birthday, and the judicial review system is barely 40, I’m not sure that argument stacks up. But in proposing these changes, I know we will be doing the right thing for Britain.'

Numerous criticisms could be levelled at the article including whether it is appropriate for an individual who holds the office of Lord Chancellor to be writing such politically-biased material.  Judicial review is open to all provided they have sufficient interest in the subject matter to bring the case.  Judicial review is not about whether the decision is economically right or wrong or politically right or wrong and it is certainly not about where the applicant stands on the political left to right spectrum.  It is about legality: ensuring that decision-makers act within the law.  Judicial review is the term which has been used since some reforms of the 1970s but the jurisdiction of the High Court in these matters goes back for many centuries.  Nevertheless, it cannot be denied that there has been a massive growth in 'administrative law' since the 1960s and 70s but that is very much due to the enormous increase, over that period, in the involvement of the State in almost every area of human activity. 

See also Nearly Legal blog - The Lord Chancellor must resign

Sir Stephen Sedley:

It is therefore appropriate to turn to comments made by Sir Stephen Sedley, a retired Lord Justice of Appeal writing in the London Review of Books - Beware Kite-Flyers.  This article is also worth reading for Sir Stephen's views about the reforms (in the Constitutional Reform Act 2005) to the Lord Chancellor's role about which Sedley, in common with many lawyers, is critical.

' ..... making the Lord Chancellorship a secondary occupation of the new secretary of state for justice was more than a simple consolidation of tasks: by depriving the judiciary of a voice in cabinet, it exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law. We are now seeing the consequences.'

'Since the mid-17th century, no non-lawyer has held the office of Lord Chancellor. The decision in 2012 to put a political enforcer, Chris Grayling, in charge of the legal system carried a calculated message: the rule of law was from now on, like everything else, going to be negotiable.'

Sedley sees Grayling's proposals as undermining judicial review by starving claimants of legal aid - e.g. by introducing a ‘lawful residence’ or ‘strong connection’ test, which will prevent abandoned children, trafficked women and other vulnerable non-nationals, along with foreign nationals harmed or abused by the UK in their own countries, from contesting unlawful official acts affecting them.

A further example offered by Sedley is prison law -an area of legal practice into which judicial review has since 1980 'let much needed daylight into a system which until then stood largely outside the law.'  

Sedley is also highly critical of denial of legal aid for judicial review claims (in which much of the cost is incurred in the early stages) until and unless a judge gives them the go-ahead.  This places the whole financial risk of initiating a claim on the claimant's lawyers. 

The superficially attractive reason is that it will inhibit the making of long-shot or speculative claims at public expense, but it is supported by no evidence, and the argument advanced in support of it – that the claimant’s lawyer ‘is in the best position to know the strength of their client’s case’ – displays a depressing degree of ignorance about how judicial review works. 

More often than not, it is the defendant authority which holds most of the relevant cards, and in many cases it holds on to them for longer than it is supposed to, either because there is too little time for proper disclosure of documents or because sitting tight affords the best hope that the claim will go away. The departmental calculation is that indigent claimants’ lawyers will be deterred from taking on all but sure-fire claims. In proposing that other claimants can be left to their own devices without injustice, the paper makes no attempt to confront the consequences: a plethora of claims made by litigants in person, clogging up the courts as judges try to discern arguable points in the chaos of paper, and costing public authorities large sums in irrecoverable costs as they attempt to respond to such claims.

As for the growth in judicial review, Sedley points out that in 2011, there were 11,359 applications for judicial review but only 356 got to a full hearing and only 144 succeeded.  This alone shows that no sensible lawyer will advise judicial review unless he feels that there is a very good case to do so.

Sedley further states - 'Grayling’s consultation paper appears not to comprehend that of the 11,000-odd judicial review claims which were initiated in 2011 but never came to trial, a substantial proportion will have been partly or wholly successful without need of adjudication. We know from the ministry’s own statistics that something approaching half of the legally aided claims were withdrawn or settled before a judge was asked for permission to proceed, ....'

Sedley concluded - 'In the round, judicial review is an economic and effective branch of litigation, performing a constitutionally critical role in keeping the exercise of public power within the law, and legal aid for it is for the most part money well spent.'

Other links:

Well worth reading is Francis Fitzgibbon QC's article - Judicial Activism

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