The War on Judicial Review

Breaking News: the UK is at war. Not with Iraq or Afghanistan or even Al-Qaeda, not this time anyway. Like those wars though, according to the Prime Minister speaking at the CBI today on Monday, it is a war being fought on several fronts: “we’re having an al- out war on dumbing down” led by the noble troops of the Free Schools and Academies regiment, we are “ in the economic equivalent of war – and we need the same spirit”, particularly if we are going to take on the behemoth of unnecessary EU regulations and too many “completely useless” judicial review applications. Whilst the triumphalism may well have enthused members of the CBI like most cheerleading, it was light on detail and heavy on over-simplification. More than that, the potential implications of what was said could simply being laying the foundations for the latest assault on the rule of law on the altar of austerity, following the reforms of legal aid and proposals for secret trials.

The speech (which you can read in full here ) covers so many different topics I could be here all night but since this is a legal blog, I will confine myself to judicial review.

It’s fair to say that for the second week in a row, David Cameron is “utterly fed up.” This week’s irritation?:

“Consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy-in, complying with EU procurement rules, assessing sector feedback this is not how we became one of the most powerful, prosperous nations on earth.

The Minister stands on a platform like this and announces a plan then that plan goes through a three month consultation period; there are impact assessments along the way; and probably some judicial reviews to clog things up further.”

How can we solve this?

“Here’s how:

Cutting back on judicial reviews.

Reducing government consultations.

Streamlining European legislation.

Stopping the gold-plating of legislation at home.

And quite simply: getting our roads and railways built more quickly.”

Starting with judicial review, and with no sense of irony, the apparent problem is that it has become “a massive growth industry in Britain today”. Now, you might think that a new growth industry is exactly what we need but of course litigation costs money and doesn’t have the “right” kind of economic value. The PM then asserted that the number of JR applications has tripled in a decade” to something approaching 12,000 applications per year since 1998.  For reasons I will come back to this, is probably about right and it should come as little surprise. As Mr Cameron was prepared to concede that “some are well-founded – as we saw with the West Coast mainline decision”. That’s the same decision that had it been taken properly in the first place, would have saved the taxpayer £40 million pounds . Even so:

“Let’s face it: so many are completely pointless. Last year, an application was around 5 times more likely to be refused than granted. We urgently needed to get a grip on this.“

The obvious question is, what is a “completely pointless” application? If this means that the application never had any real prospect of success then the application will not even get off the ground and permission will be refused, all within a relatively short period of time – problem solved.  What Mr Cameron did not fully lay out is the two stage-process of a JR application.

As with all litigation, what takes the most time is the substantive hearing but you won’t even get that far unless you get passed the permission stage. This is where the application will be considered based on the forms submitted by the applicant. The scope of JR is very narrow, an application must disclose grounds for questioning

“the lawfulness of–

(i) an enactment; or

(ii) a decision, action or failure to act in relation to the exercise of a public function.” CPR 54.1

In other words, judicial review is not simply a means of appealing a decision because you happen to disagree with it – it is not an appeal in the traditional sense.  It has to be shown that the impugned decision was unlawful because for example, it is irrational – in the sense that no sensible public authority could have come to it if it properly directed itself on the law and the facts or because the decision was not one that the decision-maker had the authority to make. In law speak, because the decision was ultra vires.

These are just two of the grounds on which JR might be sought because Mr Cameron is right, judicial review has grown in the sense that the expectations of a decision maker are more demanding than when classical administrative law was conceived. The implication that this is (yet again) the fault of money-grabbing lawyers is (yet again) false. Modern judicial review followed in the wake of the Second World War, as the influence of the State on people’s lives has grew and along with it the legal scrutiny of the State as a decision-maker. Through into the mix (and only by way of example), the accession to the European Union and the passing of the Human Rights Act 1998, particularly with the development of the “proportionality doctrine”, the expansion of our environmental obligations and the complexity of planning and immigration law all of which were decisions taken by Parliament, and we can start to understand how judicial review has evolved to its current form. What is clear is that the ultimately objective is to ensure that a decision is reached in accordance with the law.

But if we accept that the problem as stated, what do we do then?

“Reduce the time limit when people can bring cases.

Charge more for reviews – so people think twice about time-wasting.

And instead of giving hopeless cases up to four bites of the cherry to appeal a decision, we will halve that to two. “

The time-limit for brining judicial review is already very strict. Whilst the ordinary maximum time limit is three months, an application can and often will be rejected, regardless of its merits if it has not been brought “promptly”. In order words, just because an application is brought within three months does not mean it will be considered, if the court takes the view that it could and should have been brought sooner. What is the reason for this strict approach? It is because the courts are acutely aware of the need for certainty in public decision-making.

Regardless of whether or not the application succeeds, there is a fee in the region of £200 to pay for it to filed at the High Court (where all JR applications begin). For the international developer this is perhaps small beer but for the homeowner challenging a compulsory possession order, the immigration detainee challenging the legality of his or her detention or a family challenging the exclusion of a child from school, the cost of any form of litigation is already prohibitive. 

This highlights another issue that is not entirely clear – are the grumbles over JR about its availability in general or only those which “hold-up” profitable land development, private finance initiatives or takeover decisions and the like? Given the context of the speech, one might assume that the government’s ire is aimed at the latter type of decision. If so, then, one legal commentator has suggested that the number of these applications actually been declining in recent years and that the real increase is has been found in immigration and asylum cases. In any event, the idea of a government deliberately proposing to price citizens out of challenging the legality of State decisions should be a concern because it strikes at the very heart of the rule of law and government accountability.

“When this country was at war in the 40s, Whitehall underwent a revolution. Normal rules were circumvented. Convention was thrown out.“

True enough but precisely because the challenges of war are not comparable with those of peace-time. Moreover, the PM would do well to remember that that war was fought to defend the rule of law not to justify undermining it whenever times were tough. Dire though the economic outlook might be, the analogy of war is at best fundamentally misleading. 

The PM’s illusion to the West Coast Mainline debacle is a pertinent one. All too often, decisions are taken in haste, corners get cut and (costly) mistakes get made. Better decision-making will mean that the courts have no reason to intervene.

We all want to see the economy recover, we all want to “help people thrive” and “we all want to build an economy that is not just worth something but is worthwhile”. But those aims are achieved by standing steadfastly by a commitment to legality and the certainty that that provides. - an issue that the courts have at the forefront of their minds. I would have thought in such tumultuous times, we would grab that certainty with both hands.