'I believe in protecting judicial review as a check on unlawful executive action, but I am equally clear that it should not be abused, to act as a brake on growth.'
The Lord Chancellor's opening statement in his foreword to the government's response following its consultation on further judicial review reform (published on 5 February) is an interesting one, not least because the emphasis in the rest of that document is firmly on the second, rather than the first, sentiment expressed.
While the government's first consultation on judicial review reform, published in December 2012, attracted around 250 respondents, this second consultation received 325 responses from a wide variety of organisations and individuals. This may indicate that, proceeding in parallel to swingeing cuts to legal aid, the government's ongoing programme of changes to judicial review process is causing growing concern, despite the Lord Chancellor's half-hearted attempts at reassuring us that he wishes to defend judicial review's important constitutional role.
Standing
There is one reason for relief in the proposals now outlined by the government - the plan to bring forward legislation narrowing the currently wide test of standing found in section 31(3) of the Senior Courts Act 1981 has been abandoned. Of all the issues raised in the consultation this was the most concerning. The government's focus on the individual benefit that a claimant might derive from a challenge ignored the fact that the beneficiaries of judicial review are not only claimants, but any person that has been adversely impacted by the unlawful decision and, given the inherent interest of all citizens in public bodies acting lawfully, the general public.
The narrowing of the standing test would have prevented non-governmental organisations, among others, from bringing judicial review challenges (indeed this is what the proposal seemed aimed to achieve). It would have done so on the basis of the government's (unsupported) assertion that the court's interpretation of the current standing test had 'tipped the balance too far, allowing judicial review to be used to seek publicity or otherwise to hinder the process of proper decision-making'. In this context, 'proper', it was clear, was to be read as a synonym for 'government'.
Of the 325 responses to the consultation, 241 commented on the proposals in relation to standing. Of these 241 only 16 supported a revised test, leaving 213 opposed. In its response to the consultation - also published on 5 February - the senior judiciary bluntly stated '[a]ny consideration of a new test of standing must address head-on the effect this may have on the rule of law. The consultation paper fails to do so'.
The government's response states that it will not seek to bring forward its proposals regarding standing. It is right to refrain from doing so.
Financial incentives
The climbdown on the issue of standing was, however, far from gracious - 'The government is clear that the current approach to judicial review allows for misuse, but it is not of the view that amending standing is the best way to limit the potential for mischief'. This view provided the pretext for more fundamental changes on costs including:
- a legislative statement of the public interest test to be applied when granting a protective costs order in non-environmental cases,
- a presumption that defendants will be able to recover the costs of oral hearings, and
- the provision of financial information by claimants and not allowing legal aid practitioners to claim the costs of a failed permission application (although the Legal Aid Agency will have discretion to pay for meritorious applications which are concluded prior to permission).
Although, from a constitutional point of view, such changes lie more comfortably within the legitimate purview of the executive, and are perhaps unsurprising in the current economic climate, their long term effect on access to justice is open to question given the dissuasive effect that they are intended to have on claimants. Although the Lord Chancellor concluded his foreword by stating that he was confident that his proposals would 'protect access to justice for all', how these changes will do so was not explained in the response and is far from clear.
Procedural defects
Of most concern, however, is the fact that the Lord Chancellor has not retreated from his proposal with regard to claims that are brought on what are dismissed as 'minor technicalities.' As currently drafted, clause 50 of the Criminal Justice and Courts Bill (published alongside the government's response) states that the court must refuse permission or relief in cases where 'it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. At the permission stage the court may consider this issue of its own motion, but must do so upon request by the defendant.
Such a measure can only foster a perception that public bodies can get away with cutting corners in decision-making, thus reducing the incentive to good practice. Paradoxically, this is likely to result in a greater number of poor decisions which could, in turn, lead to an increase in the number of judicial review challenges brought. When a challenge is brought, in combination with defendants' ability to recover costs for attendance at oral permission hearings, clause 50 will lead to greater time and expense at the permission stage.
It will also involve the court stepping outside of its supervisory jurisdiction in trying to ascertain whether or not the absence of particular conduct on the part of the decision-maker would have led to a different decision. The fact that the current clause is drafted in mandatory terms will rob the court of an important element of its traditional discretion in determining the appropriate remedy to do justice in any particular case.
There are uncomfortable ambiguities in the drafting of clause 50. For example, despite the government's stated intention, its application is not specifically confined to procedural public law defects in a decision - does this leave room for a public authority to argue that, even though a decision has been found wanting on substantive grounds (such as an error of law or a fettering of discretion), it is 'highly likely' that the decision would have remained the same absent that flaw?
In addition, there is cause for concern in the fact that the clause refers to the 'outcome for the applicant'. Although the standing test has been preserved in its current form, what effect will this formulation have on challenges by claimants, such as non-governmental organisations upon whom the decision would have had no direct impact?
Finally, what is to be made of framing the test in terms of an outcome that would not be 'substantially different'? Apparently it would not be enough for an applicant to demonstrate that the outcome would have been likely to be (say) 'materially' or even 'significantly' different. Even in such cases, in which a successful judicial review application would make a real difference to real world outcomes, permission or relief would have to be refused.
Given the Lord Chancellor's climb-down on the issue of standing, we have not gone as far as we otherwise might have down the slippery slope of neutering the effectiveness of judicial review as a check on executive action. However, with the measures that will be taken forward, framed against a background of continued use of unsubstantiated terms such as 'abuse' and 'misuse' by the government to describe judicial review challenges, it appears that the slide continues.