Judicial Review: proposals for further reform

Overview

Introduction

The Government is inviting views on potential measures for the further reform of judicial review. The measures aim to tackle the burden that the growth in unmeritorious judicial reviews has placed on stretched public services whilst protecting access to justice and the rule of law.

The consultation exercise seeks views on proposals in a number of key areas:

  • how the courts deal with minor procedural defects that would have made no difference to the final decision;
  • a number of measures to rebalance the system of financial incentives so that those involved have a proportionate interest in the costs of the case.  This includes an amended proposal on payment of legal aid providers in judicial review cases, previously included in the Transforming Legal Aid consultation which closed in June.
  • speeding up appeals to the Supreme Court in important cases.
  • a new specialist “planning chamber” for challenges relating to major developments to be taken only by expert judges using streamlined processes.  This builds on the “planning fast-track” process implemented in July 2013.

The consultation exercise also explores the potential for reform in these areas:

  • the potential to reform the test for standing (who is able to bring a judicial review);
  • local authorities’ abilities to challenge nationally significant infrastructure projects; whether it is appropriate to provide legal aid for  certain statutory challenges under the Town and Country Planning Act 1990.
  • the use of JR to resolve disputes relating to the public sector equality duty and whether there are suitable alternatives.

Consultation

The Government would welcome responses to the questions set out in this consultation. Those who would prefer to submit their responses via e-mail may send them to admin.justice@justice.gsi.gov.uk. Those who would prefer to submit views in hard copy should send their responses to Judicial Review Consultation, Ministry of Justice, 4th Floor, Postal Point 4.38, 102 Petty France, London, SW1H 9AJ.

A welsh language version of the consultation is available below.

These proposals follow those in the consultation Judicial Review – Proposals for Reform, which ran from December 2012 to January 2013 and set out some of the background and the Government’s concerns about the use of judicial review.  The foreword to that document said:

“we are considering whether these proposals need to be supported by a programme of more wide ranging reforms.” 

The present consultation follows on from the reforms implemented as a result of that consultation, setting out further proposals and areas in which action might be taken, on which the Government seeks views. 

This consultation runs for 8 weeks; the deadline for responses is midnight on the 1 November 2013.   

We want to engage as widely as possible during the consultation, but more effective use of judicial review is a key part of the Government’s programme to tackle public burdens, promote growth and stimulate economic recovery, so the Government is keen to move forward with any necessary reforms quickly.

Related Information

Consultations:

Related Documents

Results

Last autumn the Government invited views on potential measures for the further reform of judicial review. The measures aimed to tackle the burden that unmeritorious judicial reviews has placed on stretched public services whilst protecting access to justice and the rule of law.

The consultation exercise sought views on proposals in a number of key areas:

  • how the courts deal with minor procedural defects that would have made no difference to the final outcome;
  • a number of measures to rebalance the system of financial incentives so that those involved have a proportionate interest in the costs of the case.  This includes an amended proposal on payment of legal aid to providers in judicial review cases, previously included in the Transforming Legal  Aid consultation which closed in June.
  • speeding up appeals to the Supreme Court in important cases.
  • a new specialist “planning chamber” for challenges relating to major developments to be taken only by expert judges using streamlined processes.  This built on the “planning fast-track” process implemented in July 2013.

The consultation exercise also explored the potential for reform in these areas:

  • the potential to reform the test for standing (who is able to bring a judicial review);
  • local authorities’ ability to challenge nationally significant infrastructure projects; whether it is appropriate to provide legal aid for  certain statutory challenges under the Town and Country Planning Act 1990.
  • the use of JR to resolve disputes relating to the public sector equality duty and whether there are suitable alternatives.

Results

325 responses were received to the consultation from a range of stakeholders, including lawyers, representative bodies, businesses, public authorities and interested individuals.

The Government response can be found below. It summarises the responses received and sets out the reforms we intend to take forward and those proposals we have decided not to pursue.  

Under the reforms we are taking forward, we will:

  • create a Planning Court to speed up the consideration of planning and related judicial reviews and statutory challenges;
  • make changes to how the courts deal with judicial reviews which are unlikely to affect the outcome for the applicant by amending the current test of ‘inevitable’ to ensure judicial reviews cannot proceed on the basis of minor ‘technicalities’;
  • reduce the potential for delay to key projects and policies by increasing the scope of leapfrogging appeals (where a case can move directly from the Court of first instance to the Supreme Court);
  • strengthen the implications of receiving a Wasted Costs Order by placing a duty on the courts to consider notifying the relevant regulator and/or the Legal Aid Agency when one is made;
  • set out the circumstances in which a court can make a protective cost order in non environmental judicial reviews to ensure they are only used in exceptional cases properly in the public interest;
  • establish a presumption that interveners in a judicial review will have to pay their own costs and any costs that they have caused to either party because of their intervention;
  • introduce new requirements for all applicants for judicial review to provide information about how the judicial review is funded in the courts and Upper Tribunal and how the courts should use this information.
  • restrict payment of legal aid for work on permission applications unless permission is granted subject to discretionary payment by the Legal Aid Agency (LAA).

The changes aim to ensure that cases are dealt with more quickly – particularly significant planning cases - and to tackle the burden of judicial review by those seeking to generate publicity or delay implementation of decisions that had been properly and lawfully taken.

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Contact

Administrative Justice 0203 334 5610

Key Dates

Consultation is Closed

Ran from 6 Sep 2013 to 1 Nov 2013

Other Information

Audience:

  • Businesses,
  • Citizens,
  • Voluntary organisations,
  • Local authorities,
  • Litigants,
  • Legal professionals,
  • Judiciary

Interests:

  • Courts,
  • Public Bodies,
  • Criminal justice,
  • Law