Proposed restrictions on Judicial Review

Chris Grayling, the Lord Chancellor / Justice Secretary, has published a consultation paper setting out proposals that are deliberately aimed at reducing the number of Judicial Review applications, by making it more difficult and more expensive to apply for judicial review. Allegedly, these ideas are targeted at ‘weak or ill-founded’ judicial reviews, but their catch-all nature will affect all JR applications, not just the unmeritorious ones.

I had expected a suggested reduction in the time limit for making an application for permission to bring a claim for JR, and suggested that it might be sensible for the time limit to be brought into line with the six-week (42-day) time limit that applies to statutory High Court challenges to planning appeal decisions under section 288 of the Town & Country Planning Act 1990. This is what is now being proposed in planning cases “when the claimant knew or ought to have known of the grounds for the claim”. (In procurement cases , i.e. decisions or actions within the ambit of the Public Contracts Regulations, Grayling is suggesting that the time limit should be just 30 days from the date of the decision that is being challenged, which won’t make lawyers dealing with that type of case very happy).

Bearing in mind that an informal six-week time limit had been applied by the courts in planning cases, prior to the House of Lords decision in Birkett, there cannot really be any serious objection to the time limit being set at this level. However, it appears that in the interests of justice the Court will still have the discretion to extend time, in order to cater for exceptional circumstances, which are bound to occur from time to time. The removal of this discretion (which has always been sparingly exercised by the courts) would have caused injustice, particularly to amenity groups and other members of the public who do not have the legal and financial resources enjoyed by major developers and other commercial organisations, and who may therefore need extra time, including the time required to organise the funding of such litigation in some cases. Continued compliance with the Aarhus Convention would have required this in any event.

A point which immediately arises, and which is addressed by the consultation paper (but without a precise answer being suggested) is precisely at what point grounds of challenge should be said to arise. In planning cases, after Birkett, it is currently the date on which the planning permission under challenge is actually issued, rather than the date of the resolution leading to the grant of that planning permission. Grayling’s suggestion that time should run from the earliest date on which grounds of challenge arose could, in principle, put the date back to the original committee resolution. However, much can happen between such a resolution being passed and a planning permission actually being issued, and it is well settled law that the decision-maker must take into account any change of circumstances between the resolution being passed and the permission being issued (see Kides v. S Cambs DC [2002] EWCA Civ 926). Thus grounds of challenge (or additional grounds) might well arise between these two dates, and so it would probably be best to leave this rule derived from Birkett undisturbed. To do otherwise might encourage premature JR claims, when the matter might be resolved prior to any final and irrevocable action being taken by the authority.

The proposals also seek to tighten the procedural rules for applying for the Court’s permission to bring a claim for JR. The government’s proposal is that in cases where the claimant has been refused permission on the papers, and the matter is one which has been the subject of a prior judicial hearing, the claimant’s right to ask for an oral renewal of the application for permission should be removed. This is unlikely to affect most planning cases, although it might be relevant in cases like the Dale Farm saga and similar gypsy/traveller cases, where there has been a course of previous litigation. Any appeal to the Court of Appeal would also be on the papers only (a change that has already occurred, following amendment of the Civil Procedure Rules (Rule 54.7A and 52.15(4)) with effect from 1 October 2012).

The government has clearly had to steer a careful course here. Judicial Review may be the only available route for a claimant to challenge a decision, and so the procedure must not act as a barrier to access to justice, failing which it might infringe the requirements of Article 6 of the European Convention on Human Rights (the right to a fair and public hearing). The government’s reasoning is that the changes they propose will only act as a procedural barrier where there has been a prior judicial process involving a hearing (thus satisfying Article 6) or where the claimant has failed to make out a claim to be determined (and so has not engaged Article 6 substantively). In these circumstances, they believe, their proposals would operate compatibly with Article 6.

There is, however, a sting in the tail. The government is still proposing to remove the right to an oral renewal where the case is assessed as totally without merit. It seems that this is primarily targeted at immigration and asylum cases. It could prove to be somewhat controversial. The idea is that the judge reviewing whether to grant permission may, if he or she considers that no arguable case is made out, also decide that it is “totally without merit”. In the context of immigration, where a judge finds that a case is totally without merit, they may also state that oral renewal is no bar to removal, which means that an application for renewal will not of itself be sufficient to defer that removal, and the claimant will have to obtain an injunction to prevent it.

Finally, the government intends to hike the application fees for JR as an added disincentive to claimants. As matters stand at the moment, a party who wishes to bring Judicial Review proceedings in the High Court must pay an initial fee of £60, and where permission is granted a further fee of £215 is payable by the claimant before the matter can proceed to trial. There is no fee for an oral renewal of the application for permission. The government has already conducted a previous consultation exercise, which proposes to increase the fee both for an application for permission to bring a Judicial Review and then to proceed to trial to £235 (i.e. £470 in total). They now propose to tinker further with this, by introducing an extra fee for an oral renewal at the same level as for a full hearing of the Judicial Review (i.e. £235). On the other hand, where the application for permission is successful, they propose to waive the further fee for a full Judicial Review hearing. The rationale for this is that an applicant who is successful in securing permission for Judicial Review at an oral reconsideration would not have to pay any more than one who was successful on written submissions. Those entitled to a fee remission would have their fees reduced or waived. However, as I and other commentators have pointed out before, there must be some doubt as to whether these fee increases would put us in breach of the Aarhus Convention in relation to environmental challenges (including planning cases).

It is abundantly clear that in relation to planning cases, the number of judicial review applications coming forward does not even begin to justify the alleged grounds on which the government’s proposals are based. The total numbers are modest (only 191 in total in 2011), and there is no evidence that there is a disproportionate number of ‘unmeritorious’ claims within this group, still less that the proportion of such allegedly hopeless cases is on the increase. A respectable argument can be made in favour of the proposed six-week time limit, but it does not derive in any way from the quoted statistics; it simply removes an element of uncertainty which was arguably in breach of European law on this issue.

There will no doubt be detailed and well argued objections to some of these reforms, especially those which impact on immigration and asylum cases, and thereby raise issues of equality and human rights. The extent to which the government takes notice of the reasoned objections that can be expected will be a telling test of how honest and honourable this government really is.

© MARTIN H GOODALL