Martin Partington: Spotlight on the Justice System

The consultation paper on Judicial Review has now been published. Responses are invited by 24 January 2013. If the Christmas and New Year holiday period is discounted, this leaves the response time very short.

The Consultation Paper’s analysis of the problem (so far as it is a problem) is not in my view very clear. As the Press Release puts it:  ‘There were 11,200 applications last year (2011), compared to just 160 in 1974 – and of last year’s decided applications only 1,200 (one in six) were deemed suitable for a Judicial Review to go ahead.’

The vast bulk of these applications were made in cases involving aspects of immigration and asylum.

The present rules already require applications for judicial review to be made within 3 months of the date of the decision which it is sought to review, and the courts have discretion to refuse to hear cases where the application was made towards the end of the period. In other words anyone seeking judicial review has to get a move on.

Of course, each of the applications has to be considered; this creates an enormous burden on judges who have to read the papers and decide whether or not to grant leave.  If they refuse leave, they have to provide written reasons, and these may themselves trigger an application for an oral hearing to reconsider the application. If this is rejected, there is a further right of appeal to the Court of Appeal.

Until recently, all application were made to the Administrative Court in London; there has been an element of decentralisation by the creation of Administrative Court centres in Birmingham, Manchester, Cardiff, and Leeds.

In addition, some immigration/asylum cases are now dealt with by the Upper Tribunal. And  clauses in the Crime and Courts Bill, currently before Parliament, will, if enacted, allow for all immigration, asylum or nationality Judicial Reviews to be heard in the Upper Tribunal. It is also proposed to give the Lord Chief Justice greater freedom to deploy Judges more flexibly across the courts and tribunals to respond more quickly to changes in demand.

If the immigration and asylum cases are stripped out of the system, the remaining number is actually quite small and should be capable of being handled without undue delay. The Government however is not willing to wait and see what the impact of removing those categories of case would be. It is also proposing other amendments, in particular to time limits (which are already short).

• For planning cases – reducing the time after the initial decision that an application for Judicial Review can be lodged from three months to six weeks, to match the time limit for challenges to the High Court on planning matters;
• For procurement cases – reducing the time after the initial decision that an application for Judicial Review can be lodged from three months to 30 days, to match the time limit for procurement appeals

There are also proposals to restrict the circumstances in which an oral renewal may be sought.

Finally it is proposed to increase quite sharply the fees that must be paid for making an application for judicial review  – from £65 to £215 for an application, with another £235 for an oral hearing.

The aim of these reforms seems to be not immigration and asylum – which are already being dealt with – but other types of challenge to official decisions, in particular decisions such as planning decisions, in relation to which some argue that JR causes economic damage by delaying important projects.

Some pretty big legal guns are being lined up to challenge these proposals and I suspect they will get heavily criticised in the House of Lords; but it is the House of Commons that matters more and here legal arguments may have less impact.

Clearly the Government is determined to do something. There may be ways in which procedures can be streamlined without damaging the interests of those who may wish to challenge the exercise of public power.

Future posting will keep you up to date.

To read the Consultation Paper, go to http://www.justice.gov.uk/news/press-releases/moj/judicial-review-consultation