03 April 2014 #Public Sector
On 6th September 2013 the Ministry of Justice (MOJ) published a consultation paper on reforming judicial review. The MOJ had a number of specific concerns about the use of the judicial review process including its use as a campaigning tactic and the delays and costs involved in the process.
There were a number of responses submitted to the consultation, including from senior Judges. Some of the proposals in the consultation have already been implemented, for example, with effect from 1st July 2013 the time limit for bringing a judicial review claim for procurement cases has been reduced to 30 days, and for planning cases, is now six weeks.
On the 5th February 2014 the response to the consultation process was published by the Government. In addition they published a draft Criminal Justice and Courts Bill 2013 - 2014 which proposes to implement those parts of the consultation process that the Government wishes to proceed with. It contains many other criminal justice reforms not relating to judicial review. The focus of the remainder of this article are the key changes being proposed for the judicial review process.
The “Standing” Test
The consultation paper had proposed that a new test be introduced to restrict those that could bring judicial review proceedings. It was proposed that in order to bring a judicial review claim the applicant had to show that it was affected by the decision which was to be the subject of the review. The aim was to prevent interest groups and campaigners from bringing proceedings. The proposal was heavily criticised as part of the consultation process as a number of consultees felt the existing test was sufficient and the new test would be unnecessarily restrictive. The Government has therefore decided not to implement a “standing” test in relation to judicial review and the current rules remain in force.
Would the outcome be substantially different?
The Bill does introduce changes to the tests that courts use when considering whether to grant permission to an applicant to bring a judicial review or obtain relief in a judicial review hearing. At the moment the court may refuse to grant permission or award a final remedy where it is “inevitable” that a failure would not have changed the original outcome. The Government considered that “inevitable” was a high bar to reach and it wished to reduce the number of judicial review claims which were brought on the basis of a technical flaw which may have had very little effect on the outcome.
Under the Bill a court must refuse permission to bring judicial review proceedings “if it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. A similar test applies in relation to granting relief.
The drafting of the clause does not currently make it clear if this impacts only on technical flaws – or also applies to substantive flaws.
Leapfrogging of cases
The reforms allow some cases to move directly from the High Court to the Supreme Court, missing out the Court of Appeal. These changes are not limited to judicial review claims and will apply to civil and administrative proceedings generally. The judiciary will retain control over when a case can leapfrog and it removes the need for all parties to consent.
Source of Funding
The Government has also proposed reforms to ensure that the resources of anyone backing a claim for judicial review (even if not named on the proceedings) are taken into account when the applicant’s financial capacity is considered on the allocation for costs. Again this is a reform targeted by the Government at reducing the number of special interest groups that support judicial review claims whilst at the same time remaining in the background and somewhat protected from the court’s ability to order costs.
The Bill is currently in draft form and there may be changes to it. Commentators have already identified some areas of concern, for example, whether the “substantially different” test can apply to errors in substantive decisions as well as procedural errors. The impact of the changes will depend upon the final text of the Bill, how it is interpreted in the courts rules and the interpretation granted to the text by the court when the legislation comes before it.