Coalition reviews judicial review
Steeles Law Head of Planning & Environment David Merson looks at the Coalition's proposals to revise the Judicial Review process.
Chris Grayling, the Lord Chancellor and Secretary of State for Justice, has today issued a consultation paper entitled 'Judicial Review: proposals for reform'.
The paper sets out the reforms the Coalition propose to make in three key areas of the Judicial Review process namely: (i) the time limits within which Judicial Review proceedings must be brought; (ii) the procedure for applying for permission to bring Judicial Review proceedings; and (iii) the fees charged in Judicial Review proceedings.
In respect of the first, the paper identifies two categories of case to which the proposed shorter time limit might be appropriate one of which is planning decisions although on the Coalition's own figures this is certainly not an area responsible for the bulk of Judicial Review applications.
In coming up with its proposal the Coalition seeks to draw parallels with the statutory appeals process in planning. This is however unhelpful because Judicial Review deals with procedural failings which may not always be apparent at the time of the decision and certainly will not have been considered in any detail in the preceding considerations as opposed to the appeals process which deals with merits which will have previously been considered at the pre-application stage, at the determination stage and at the appeal stage before the matter ever reaches the court. This means that on the one hand one is looking at issues that are only just emerging from investigation and inter party exchanges including discovery and Freedom of Information requests as opposed to ones that have been argued and honed down very clearly in a number of different arenas.
In addition, the reduced time limit will not provide for sufficient time to deal with either the pre-action protocol requirements introduced to try and bring about a consensual resolution without the need to resort to the court or the funding issues that so very often arise when third party challenges are in contemplation.
Despite what the Coalition believes it is thought likely that this proposal will lead to more proceedings being issued if only to protect positions while the protocol 'Letter before action' and funding issues are addressed.
In addition there may be scope for other avenues of challenge.
For one, the judicial discretion to extend the time limit in limited exceptional cases may fall foul of European requirements of certainty particularly in Environmental Law cases.
It is also noted that the proposed time limit is shorter than that allowed for challenging decisions of the European Institutions and may therefore be susceptible to challenge particularly in relation to those challenges which are based in Environmental Law on for example access to justice under the Aarhus Convention or failures to apply or properly apply European Directives dealing with Habits and Protected Species.
In respect of the second limb of reform the Coalition proposes changes to the procedure for permission to restrict the number of opportunities available. In cases where the claimant has been refused permission on the papers, and the matter is one which has been the subject of a prior judicial hearing, the claimant's right to ask for an oral renewal of the application for permission would be removed and any appeal to the Court of Appeal would also be on the papers only.
Finally, in respect of the third limb of reform, the Coalition proposes that the applicant should pay a fee for an oral renewal of an application for permission to be set at the same level as for a full hearing of the Judicial Review (currently £215 but under current general proposals rising to £235). Where the application for permission is successful it is proposed that the further fee for a full Judicial Review hearing would be waived but it should be noted that the Coalition will consider the scope for adjusting fees further over time so that they reflect the full costs of providing the service.
The deadline for consultation responses is 24 January 2013 which can be submitted on-line, by e-mail or by post and full details of the proposals and consultation can be found here.