Judicial review proposals: PLP’s response
The Ministry of Justice (MoJ) launched its consultation paper on judicial review reform on 13 December 2012, with a shortened consultation period of six weeks timed to run over the holiday period, leaving just 24 working days for responses. The consultation closed on 24 January 2013.
Proposals for reform
The proposals were largely unevidenced and unparticularised. To the extent that evidence was provided, it was impressionistic, anecdotal and often misleading. The MoJ’s case for reform was not made out by the consultation document or the supplementary impact assessment. PLP has called for supporting evidence to be provided, so that meaningful engagement can take place.
The consultation document claimed that judicial review impeded economic growth and led to overly cautious public body decision-making. In its response, PLP cited both research and government policy documents demonstrating the positive influence of judicial review on public authorities’ decision-making, and identified the relatively small number of judicial review claims that could have implications for economic recovery (no examples are given in the consultation document): in 2011, there were just 30 planning and procurement judicial reviews.
In its attempt to portray the number of judicial review claims as spiralling out of control, the MoJ’s use of figures was, at best, selective. While it acknowledged that in recent years growth in judicial review was attributable substantially to immigration- and asylum-related cases (a category not targeted by these proposals), its rationale for reform repeatedly assumes that growth in judicial review cases was universal. This is not the case: the number of ‘other’ judicial review claims (excluding immigration, asylum and criminal cases) has remained stable since the mid-1990s, at around 2,000 per annum. As the principal justification for the proposal to remove the right to an oral renewal hearing in certain circumstances, the MoJ cited the statistic that only one in six applications for judicial review was granted in 2011. However, PLP’s and the University of Essex’s research indicated the overall success figure at the permission stage to be 30 per cent, and noted that the MoJ’s statistics failed to acknowledge the significant number of claims settled in the claimant’s favour after they are issued but before the permission stage.
PLP’s response to the proposals
The proposals themselves are without exception flawed. No consideration was given to the proven importance of oral renewal hearings as a safeguard, particularly for litigants in person and people with protected characteristics. The proposal to shorten time limits failed to take into account fundamental differences between statutory planning appeals and judicial review. Requiring continuing breaches to be challenged within three months of an initial decision was at odds with the position under discrimination and human rights law, would bar public interest judicial reviews from challenging unlawful policies or legislation, and risked public bodies profiting from the longevity of their illegality. The reforms would reduce claimants’ opportunity to comply with the pre-action protocol for judicial review and, instead, lead to an increase in premature applications for judicial review from claimants seeking to protect their position. In addition, research from the Royal Courts of Justice Citizens Advice Bureau indicated that reliance on judicial discretion to extend time limits was not a sufficient safeguard for litigants.
PLP considers that the impact of these proposals on disadvantaged groups would be significant and disproportionate. This is all the more concerning because the MoJ admits that it does not have sufficient information to assess the equality impacts of these proposals. PLP is deeply concerned that these proposals would impose unevidenced and unjustified restrictions on the right of access to the court, undermining the vital function of judicial review as a means of holding the state to account.