Martin Partington: Spotlight on the Justice System

Judicial review lies at the heart of our constitutional settlement. It is acknowledged that Parliamentary Sovereignty means that what Parliament legislates is the law. The rule of law implies that everyone, including officials of the state, must act within the law. The doctrines of the Separation of Powers and the independence of the judiciary give ultimate authority to the judiciary to decide whether or not decisions taken by state officials are lawful or not.
In recent years, some have argued that judicial review has been used not really to challenge the legality of decisions taken by officials, but to delay the consequences of decisions taken by officials. There are two specific contexts in which it is argued that judicial review has been used more as a delaying tactic than as a serious legal challenge: immigration and asylum cases; and planning decisions. These arguments are strongly challenged, in particular by public lawyers who deny that there is misuse or abuse of the system.
Nevertheless, the present Government has decided that the existing rules need to be changed. The first tranche of announcements were made in 2013 (see blog item for October 2013).
In February 2014, further announcements were made, many of which are being taken further in the Criminal Justice and Courts Bill 2014.

1. Following the earlier decision to transfer immigration and asylum cases to the Tribunals Service, the Government decided that planning cases should also be diverted away from the Administrative Court and sent to a new Planning Court. (This replaces an earlier proposal that such cases should go to a new planning chamber in the Tribunals Service.) The Planning Court will be a part of the High Court, but there will be specialist judges who will deal with planning cases – not dissimilar to the specialist courts in the commercial law area. The hope is that, by taking planning cases out of the general run of cases going to the Administrative Court, they can be dealt with more quickly so that key planning decisions can be finalised more quickly.
2. The Government wants to speed up appeals in cases which are of national importance which are inevitably going to end up in the Supreme Court, by expanding the circumstances in which such cases may go to that court without first going to the Court of Appeal. All such cases must involve a point of law of general public importance. This change, which is being legislated in the Criminal Justice and Courts Bill 2014, currently before Parliament, will not just apply to judicial review cases but to all civil cases. It will also apply to decisions of the Upper Tribunal, the Employment Appeal Tribunal and the Special Immigration Appeals Commission.
3. The Government wants to stop JRs which are based on technical flaws in the original decision-making process, when it is ‘highly likely’ that the end result would have remained the same. This is also being legislated in the Criminal Justice and Courts Bill 2014. Judges are to refuse permission to bring a JR case where they accept that it is highly likely that the outcome would have been the same. How this will work in practice cannot at this stage be determined, but it may be predicted that judicial interpretation of the phrase ‘highly likely’ will vary from judge to judge, and this clause may itself generate a whole new area of litigation.
4. The Government has decided that the details of anyone financially backing a JR must be disclosed, even if they are not a named party, so that costs can be fairly allocated. In the past backers have used individuals, and even set up new companies, to front JRs – meaning that any assessments by the court of the financial capacity of the applicant have not always been a fair representation. This change is also contained in the Criminal Justice and Courts Bill 2014.
5. The Government has decided to create a presumption that third parties who apply to join in a JR case as “interveners” should normally be responsible for paying their own way – for example when a campaign group applies to become involved in a case already taking place between an individual and an authority. At present other parties in the case can be ordered to cover the legal costs of the intervener.This presumption will not apply in ‘exceptional circumstances’.  In future these third parties will also have to compensate other parties if they cause them to run up greater legal bills unnecessarily. This presumption will not, however, apply where a third party is invited by the court to intervene.
6. The Government has decided that the use of ‘cost capping orders’ is to be significantly reduced. At present such orders, also called protective costs orders, are used by applicants for JR to prevent them having to pay the costs of the body against whom they are bringing proceedings where they (the applicants) lose their challenge. The effect of this is the alter the normal rule that the loser pays the costs of the winning party. Since the bodies challenged by JR are public bodies, the Government argues that this imposes an unfair burden on the taxpayer who in effect has to pick up the cost. The Government plans to limit the use of protective costs orders to very exceptional cases of public importance. This is also being taken forward in the Criminal Justice and Courts Bill 2014.  (Special rules will apply in environmental cases.)
7. By making changes to the rule of Court Procedure, the Government intends to make applicants who take ‘weak’ cases to a second chance hearing (known as an oral renewal) pay for some of the legal bill encountered by the other side in the process of preparing their defence more often.
8. Finally it plans to ensure that grants of legal aid are limited to JR cases that ‘have merit’.

In proposing these changes the Government asserts that the principle that individuals can challenge the legality of government action is still preserved. Nonetheless, public lawyers have been vocal in their hostility to these changes.