A couple of months ago the justice secretary Chris Grayling opened consultation on the role of judicial review, writes Mhairi Aylott.
He proposed major changes to the process: slashing the timeframe for bringing certain cases, reducing the powers of the Courts to overturn decisions on appeal and dramatically increasing fees to approximately four times their current level. David Cameron whole-heartedly supported this consultation, commenting that most applications for judicial review abuse the system and are ‘completely pointless’. Despite concerns that the consultation was held quickly and quietly over Christmas, it ends today.
- Mhairi Aylott is a researcher at the Young Foundation and works as part of the Applied Innovation team, supporting a range of government bodies, charities and organisations to innovate for positive social change. Mhairi led research on the Justice strand of work at the Young Foundation, with expertise in Social Impact Bond and Payment by Result modelling.
The Government’s justifications
As with most of the government policies coming in, Cameron and Grayling justify the consultation because of the state of our economy. The PM argues the increasing use of judicial review and number of successful claims is stifling business and development. With the number of applications almost tripling in the last decade, Grayling insists that ill-conceived cases are placing too heavy a burden on our stretched public services, creating ‘unnecessary costs and lengthy delays’ which stifle innovation and economic growth. Before being succeeded by Grayling, Ken Clarke argued that judicial review created an opportunity for judges to intervene in decisions where they should be unable, in cases preventing the government from implementing policies to boost the economy. Grayling agrees, arguing that judicial review is ‘increasingly being used by organisations for PR purposes.’
The Times has also picked up on this, commenting in an editorial last week, that the ‘threat of judicial review – with all the accompanying cost and hassle it represents – is often enough to dis-courage a minister from pursuing a policy.’ All in all, the politicians have adopted a consistent line of argument to justify a rapid downscaling of judicial review.
Those in opposition have commented that the Government is taking steps to ‘quickly and quietly crush possibly the most powerful weapon’ that citizens have to hold the government to account, with proposals that are ‘hastily thought through and seriously misguided.’ The government’s justification is questioned by the Guardian: ‘nowhere in the consultation is there an attempt to quantify the actual impact, if any, on economic growth of judicial review even though this is main justification for cutting it back.’
The number and type of cases
The government states that applications for judicial review are increasing. Breaking down these figures actually shows that what is increasing is the numbers of applications relating to immigration, the number of other case type remain consistent. When questioning the government’s consultation, the UK Constitutional Law Group offered a thorough investigation over the Governments use of statistics, plainly stating that once immigration and asylum claims are discounted there has been little change in the volume of claims over the last 10 years. The Housing Law Practitioners Association has a similar line of thought, commenting, ‘it is hard to see how it is proportionate or fair to restrict access to judicial review in other areas of law, simply to deal with a perceived problem in immigration cases.’
Emily Thornberry, Shadow Attorney General, also criticises the government’s plans:
‘Most JRs are not Nimbys trying to block affordable housing projects, but immigration and asylum cases. Those are already being transferred to the immigration courts. Let’s see how much that unclogs the system before we restrict people’s rights.’
The number of cases which link to planning and development, another supposedly justifying factor of the Governments consultation, is low – the UK Constitutional Law Group reckoned that for 2011 they found 30 planning JRs that went to final hearing, of which only six were brought against central government.
The government’s use of evidence is also questioned. The Bingham Centre for the Rule of Law argues that the hard evidence supplied by the government does not justify the proposals and that their claims remain unsubstantiated. Disputing the use of figures and supposed policy implications JR can have, they argue that the proposals represent ‘a fundamental failure to formulate policy on the basis of demonstrable and contestable evidence and perpetuates myths about the purpose and effect of our public law.’ This absence of evidence is also picked up by the Public Law Project, while Lord Woolf remarked upon a ‘lack of concern for the precision of the facts.’
Impacting service and policy
Despite the Government typecasting our local authorities and public bodies as the ‘victims’ of judicial review, opponents to the consultation have highlighted that judicial review may act as a driver to improve public services and the quality of government, improving the quality of decision-making. There can be a positive relationship between judicial review challenges and the performance of public authorities – no evidence is offered in support of the claim that public authorities are induced by the ‘fear’ to do things that administrative law does not actually require them to do.
If fully implemented, the government’s proposals will keep some decisions out of the reach of the law, talking away the citizen’s ultimate legal right which protects some of the most vulnerable in society. This in turn will give more power to the already powerful, placing public bodies and politicians beyond scrutiny and above the law. Judicial review needs to be recognised as a system which stops individuals’ rights being violated, offering protection against the decisions from local councils, statutory tribunals, central government departments, courts, the police – the list goes on. The government must not use alleged claims of ‘abuse’ as an excuse to prevent justice being brought for some of the most vulnerable, by twisting statistics and relying on an almost non existent evidence base.