Friday, 6 September 2013

More restrictions on judicial review?


In an article by the Justice Secretary, Chris Grayling, published in the ‘Daily Wail’ this morning, he calls for further restrictions on the right to apply to the High Court for the judicial review of ministerial decisions in planning and infrastructure cases. [The web version can be found at - http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html ]

He makes no bones about that fact that he is taking a strongly partisan political approach to this issue, seeing it as an avowedly Right-Left struggle. The first four short paragraphs of his article are pure bile, complaining about a growing number of “professional campaigners” who, he alleges, are “taking over charities, dominating BBC programmes and swarming around Westminster” (!) Worst of all, in Grayling’s view, is that they “articulate a Left-wing vision”. He seems to be particularly annoyed that former advisers and politicians are joining the ranks of what he calls “serial campaigners”, and he singles out the charity sector as an area where “advisers from the last Government can be found in senior roles”. He seems to be equally unhappy about moves in the opposite direction, “with campaigners lining up to try to become Labour MPs”.

This very much sets the tone and the background for what follows. Grayling alleges that charities “target the legal system as a way of trying to get their policies accepted”, particularly through the medium of judicial review. He objects to these people being able to challenge the decisions of government and public bodies in the courts, aided and abetted, as he puts it, by “teams of lawyers who have turned such legal challenges into a lucrative industry”.

It is at this point that the real lies start, and as the Nazis’ propaganda and police chief, Joseph Goebbels once observed, the bigger the lie, the more easily it will be swallowed by a gullible public. Grayling casually remarks that there are now thousands of judicial review applications each year, but he carefully omits to mention that, as a proportion of all JR applications, planning and infrastructure-related JR applications account for less than 2% of the whole!

As I have previously pointed out in this blog [Judicial review – the statistics on Tuesday, 20 November 2012 and Judicial review - statistics update on Sunday, 2 December 2012], the numbers of JR (i.e. non-statutory) cases relating to town and country planning and infrastructure cases in recent years have been: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191. (I don’t have the figure for 2012, but it is unlikely to show any really dramatic increase.)

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications in 2011 which ministers are so fond of quoting (or mis-quoting). Most of these were in fact immigration/asylum cases. Even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). Furthermore, it is not possible to discern any indication that there has been any increase in hopeless applications in this area of the law. The notion that ministers have been peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development and infrastructure projects, is clearly nonsense. In most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application.

Grayling’s assertions are based on an outright lie! But that does not deter him from proposing further restrictions on judicial review in addition to those introduced only a couple of months ago.

What these proposals actually are is not vouchsafed to us in his vituperative article in the Mail. According to the Press Association, a consultation paper is due to be published today, and we shall know more of what is afoot when this emerges. However, the PA report suggests that under these new plans, “campaigners will be banned from launching challenges” and that “local councils will also no longer be able to judicially review major infrastructure projects in their area”. It is also suggested that Grayling wants to penalise unsuccessful JR applicants with payment of a greater proportion of the government’s costs. Never mind the Aarhus Convention – a document that Grayling no doubt dislikes as much as he hates all those pesky lefties.

It is difficult to imagine a man less suited to being the Minister of Justice (and Lord Chancellor) than Chris Grayling (unless it might possibly be Michael Gove).

[UPDATE (14.17 6.9.13) : The consultation paper can now be accessed at - https://consult.justice.gov.uk/digital-communications/judicial-review. I may blog on this topic again when I have had the chance to read it in detail.]

© MARTIN H GOODALL

3 comments:

Jim Metcalf said...

Think you might enjoy this.

http://www.lrb.co.uk/v35/n17/stephen-sedley/beware-kite-flyers

Anonymous said...

Rather than making JR harder or even imssinle, how about the government focus on making legally correct decisions? Shocking idea i know, but maybe worth a shot.

And as you point out, the whole premise that JR is a problem is absurd.

Martin H Goodall LARTPI said...

I am very grateful to Jim Metcalf for drawing attention to this interesting review of the constitutional background that underpins this area of the law. One is tempted to quote the famous line from Tony Hancock – “Have you forgotten Magna Carta?! Did she die in vain?”