Judicial review is a way of making sure that public officials, including ministers, keep within the law. So there must be cause for concern when we hear a minister announce reforms to judicial review that will ‘target the weak, frivolous and unmeritorious cases which congest the courts and cause delay’ – as the justice secretary did last month. It is not Chris Grayling’s job to decide which cases are weak, frivolous or unmeritorious.
Nor was he reflecting the courts’ concerns. As the judges told him, they have already taken steps to deal more efficiently with applications for judicial review. These include: hearing cases and deciding written applications in Birmingham, Cardiff, Leeds and Manchester; allowing procedural orders to be made by more junior judges; and blocking oral renewals of applications classed as ‘totally without merit’.
And since around three-quarters of all applications involve asylum or immigration cases, these are being transferred down to the tribunals to relieve pressure on the High Court. The courts have also taken steps to discourage lawyers from bringing unmerited urgent challenges to imminent deportations and removals. There was widespread opposition to the proposals that Grayling published in a consultation paper shortly before Christmas, even though he had halved the normal consultation period to six weeks. The Constitutional and Administrative Law Bar Association even suggested that any reforms based on such a ‘flawed’ consultation might themselves be challenged by way of judicial review. Despite that, the justice secretary has now announced that most of his plans will go ahead.
The first change will be to shorten the time limit for bringing a permission application from three months to six weeks in planning cases and to 30 days in procurement cases (as defined in the Public Contracts Regulations 2006). The government accepts that this will leave insufficient time for the required exchange of solicitors’ letters which is intended to resolve disputes, where possible, without the need for proceedings. So, as the judges pointed out, some claimants will lodge precautionary applications before the time runs out and others will apply for time limits to be extended.
Among those who responded to the consultation, around seven out of 10 were against reducing time limits. Even among those who might be on the receiving end, only 40% of public authorities and 62% of businesses supported the proposals. Senior judges said they had no objection in principle, so long as the courts could grant extensions, but they were unhappy with the government’s proposed definitions. The judges persuaded the government to drop a further proposal, based on ‘anecdotal evidence’, that would have limited the time during which a continuing breach could be challenged.
The government’s second change will be to remove the right to an oral renewal of a written application for permission if a judge has decided that it is totally without merit. There would still be a right of appeal, but only in writing. That was supported by the judges. But, in their view, it made another of the government’s proposals unnecessary. This was that there should be an automatic restriction on oral renewals when ‘substantially the same matter’ had been considered at a ‘prior judicial hearing’. In any event, the judges thought that the proposal involved difficulties of principle and definition. They persuaded the government to drop this one too.
Finally, fees. At present, an applicant seeking permission to bring proceedings must pay £60. There is no fee for an oral renewal but £215 must be paid before the case goes to trial. Under the government’s proposals, the £215 would be paid before the oral renewal. But if permission was then granted, there would be no further fee before the trial. So an applicant granted permission at an oral hearing would pay no more than one who made successful written submissions.
The judges raised no objection and the changes will go through. However, the total fee of £275 for a hearing is likely to go up substantially. Some 18 months ago, the government proposed increasing it to £470 and a final announcement is expected ‘shortly’. There will be ‘fee remissions’ for those who cannot afford to pay but no legal aid for unmeritorious applications.
So what are we left with? Unnecessarily tight initial time limits for a handful of planning cases with unintended consequences that the judges will have to sort out. No oral hearings in hopeless cases and financial disincentives in weak cases. Fortunately, there is no change in the substantive law. Equally fortunately, the government has seen sense and dropped damaging changes that it would never have suggested if it had spoken informally to the judges first.
Grayling was able to go on the Today programme and sound tough. But it hardly seems worth the trouble.