Judicial Review: proposals for further reform

Results updated 4 Jun 2019

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.

Files:

• The Government response, 224.8 KB (PDF document)
• Annex A: summary of responses, 96.6 KB (PDF document)
• Annex B: paying for permission work in judicial review cases, 43.1 KB (PDF document)
• Annex C: list of respondents, 290.2 KB (PDF document)
• Impact Assessment - MoJ 212, 267.2 KB (PDF document)
• Impact Assessments - MoJ 210, 178.6 KB (PDF document)
• Legal Aid: paying for permission work in judicial review cases Equalities Statement, 91.4 KB (PDF document)
• The Government response - Welsh version, 584.2 KB (PDF document)