Debate around judicial review has made headlines in recent weeks with proposed government reforms being the subject of heated debate in the House of Lords.
The subject will be all too familiar to most of the country’s regulators, for whom judicial review is an occupational hazard.
Whilst judicial review can clearly have value in highlighting weaknesses in a regulator’s structure and processes, it can be time consuming and costly with many judicial reviews used by those who are being investigated to delay an outcome, create a distraction or to frustrate the process.
My firm recently held a roundtable discussion with regulators from the legal, medical, surveying and financial sectors gathered to discuss their experiences of dealing with judicial reviews. They faced varying numbers, from an average of 25 a year at the General Medical Council to only a handful in the whole history of the Royal Institute of Chartered Surveyors. As you might imagine, legal regulators such as the Solicitors Regulation Authority see more than most because of the expertise of those they regulate.
Attendees believed that regulatory decision making has improved immeasurably over the years and many regulators have made great strides to improve transparency. The scrutiny provided by judicial review encourages a robust and fair approach, highlighting problems and teasing out issues that might not otherwise be realised by those within the organisation.
They provide a clear and transparent way of holding regulators to account and testing procedures in court can provide ratification for their systems and give both the regulators and the public confidence in those systems.
That said, very few judicial reviews make it past the permission stage and of those only a small percentage succeed. Sometimes they will raise importance points of principle but often, once argued out, they are reduced to relatively small points which don’t take the law much further but are hugely time consuming for the regulators involved.
What emerged from the discussion was the benefit for regulators of their aiming to ‘JR-proof’ their systems and processes, as the Architects Registration Board have done, by introducing a third-party review system of administrative decisions. This review system applies to challenges to the procedure used by two of the board’s committees where there is no formal appeals procedure to the courts.
Applicants have 30 days in which to request a review and must identify where they believe procedures have not been followed or where they are inappropriate or inefficient. An independent lawyer conducts the paper-based review and the committee then decides whether to accept the reviewer’s comments and recommendations.
This use of independent lawyers in a ‘JR-lite’ process which aims to pick up issues which could otherwise end up in court, seems to be an eminently sensible approach and certainly one that other regulators might want to consider.
The best regulators undertake reviews of their regulatory processes every three to five years. All procedures and processes need to be up to speed so that one successful challenge doesn’t risk the whole system and result in the rule book needing to be rewritten. There should be formal benchmarking against current best practice, informed by judicial reviews involving other regulators.
Transparency in decision making, including publishing guidance which mitigates against the risk of people not understanding the basis of a decision, was also viewed as an important safeguard. Other best practice included having a good ‘lessons learned’ systems in place and running staff training such as ‘unconscious bias’ training to ensure decisions are based solely on a reasoned analysis of the evidence.
Although these exercises cost money, they represent good value given the potential to avoid costly challenges later on. Sometimes judicial reviews will require help from outside lawyers and, particularly for the small regulators, can have a significant cost impact even if the case ultimately goes nowhere. Added to this, cutting costs on legal fees will not be an option where an important point of principle needs to be fought to protect the public interest.
The regulators considered that it was right that regulatory regimes should be in a state of ongoing improvement and that the law constantly moves on. Maybe this is why many raised concerns about potential government reforms to judicial review.
The changes, although principally aimed at reducing the number of challenges to government decisions, will also have an impact on those involving regulators. Plans to introduce a presumption that interveners – other than those invited by the court to intervene – will bear their own costs and also those costs arising to the parties from their intervention could act as a “chilling effect” on the willingness of regulators to get involved in important litigation, the roundtable heard.
The discussion was a valuable insight into the issues judicial review raises for regulators and served as a reminder of the importance of these challenges as a means of holding regulators to account, testing the fairness and transparency of their processes and giving confidence to regulators that they are acting appropriately.
By keeping their processes under constant review and learning from regulators from across different sectors, regulators can endeavour to ensure that they are acting properly and thereby reduce the number of successful challenges they face.
James Dunn is a regulatory partner at Devonshires Solicitors. A special report is available: Navigating judicial review: the regulators’ side