Monday, 19 November 2012

PM proposes Judicial Review changes

No doubt there will some fluttering in the legal dovecotes over the threatened reduction in the scope for challenging government decisions by way of an application to the High Court for judicial review (and this would include challenges to planning permissions granted both by local authorities and by ministers).

As is so often the case, the PM’s speech seems to be long on rhetoric and short on concrete proposals, probably because the latter are still the subject of some frantic head-scratching in Whitehall. One idea which will almost certainly come forward is the shortening of the period within which an application for JR can be made. The current rule that the application must be made ‘promptly’ and in any event within 3 months has caused numerous difficulties over the years, and its legality has been doubted. A fixed period, probably 6 weeks, would meet these objections, provided that discretion is allowed to judges to extend this period in exceptional cases. However, if the period is shortened too drastically this could actually lead to more claims being made, as the government discovered when the period for planning appeals was halved some years ago. (The original period had to be restored to cope with the overwhelming workload for the Planning Inspectorate that had resulted.)

Other changes could be more problematic. There remains a need to observe the Aarhus Convention in environmental cases, and increasing the court fees might be open to the same criticisms as were levelled at the costs of JR in Lord Justice Sullivan’s report a couple of years ago. The trend, up to now, has been in the opposite direction, with proposals for increased use of limited costs orders to avoid claimants for JR being potentially bankrupted by the costs of a failed application against a powerful and well-funded public authority. Article 6 of the Declaration of Human Rights also needs to kept in mind – the requirement for a fair trial includes reasonable ‘equality of arms’.

There is already a filtering process, requiring the court to grant permission (‘leave’ as it used to be called) for a JR action to proceed, so unmeritorious claims are already weeded out at an early stage. There seems to be little need or justification for further deterrents to claimants in what are often matters of vital concern to them. Those cases which go forward to a full hearing are ones where there is clearly an arguable point. Claimants are entitled to have these cases tested by the court. Where these claims are allowed and decisions are quashed, it is because there was a serious legal flaw in those decisions, leading to real injustice to the claimant. The government cannot realistically complain about that.

Like so much else in which they meddle, the PM and his cabinet colleagues just don’t seem to have any understanding of how the planning system or the judicial system actually works. It is already well-settled law that the High Court will not ‘second guess’ the decision-maker. The merits of a decision cannot be challenged before the court; there must be a clear legal error either in the decision itself or in the procedure leading to that decision. Only then does the court have the discretion to quash that decision. Furthermore, the court will not quash a decision on a technicality. The mere fact that some legal error can be identified is not enough in itself; the claimant must show that they have been substantially prejudiced by that error, and this involves satisfying the court that upon the decision being re-taken there is a realistic chance that a different decision would then be reached. The court will not intervene if it is likely to result in the same decision being reached, by a route that avoids the legal error that vitiated the original decision-taking process.

In practice, this speech on the part of Cameron may just be another example of a crowd-pleasing pronouncement addressed to a particular audience (a particular failing of Cameron’s even in his days in opposition). He acknowledges that there will have to be consultations about these ideas, and in practice, much of what Cameron was canvassing in his flight of fancy may never see the light of day. Expect to see a change in the application period for JR; this was a change that was already on the cards. But as to the rest, don’t hold your breath.


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