Peers vote down UK government's proposed restrictions on judicial review

Out-Law News | 28 Oct 2014 | 5:27 pm | 3 min. read

Judges in England and Wales should have sole discretion on whether to take forward judicial review cases where there is no likelihood that the final outcome for the applicant would be any different, the House of Lords has said.

Peers voted in favour of retaining judges' discretion, which the government has proposed removing as part of planned reforms to judicial review included in the Criminal Justice and Courts Bill. They also voted to remove a new requirement for applicants to provide details of who was funding their applications. The bill will now return to the House of Commons for further debate, during which MPs may decide to restore the measures.

Litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said the disagreement was further evidence of passionate views held by opposing sides in the ongoing debate over how to reform the judicial review process.

"The details of the proposals and the amendments are perhaps less critical than the continuing – and at times strident – tension between opposing views," he said. "Unfortunately, everyone has their pet issue on which they can make their particular case."

"From a business perspective, there is no doubt that judicial review is an essential fall-back in those cases where, for example, an appeal is not available against public authority excess or failure, so they will endorse the grand statements of the value of the process in principle. But these cases are not likely to fall foul of the government's proposed changes. On the practical side, business does not want to see projects delayed or put at risk by third party judicial review - so at its most basic, the more difficult the process becomes the better," he said.

Judicial review is a process through which individuals, businesses and other affected parties with "sufficient standing" can challenge the lawfulness of decisions or actions of public bodies and those exercising public functions. The government has introduced a number of reforms to the process over the past year triggered by the huge growth in the number of judicial review applications made to the courts, the vast majority of which were unsuccessful.

The proposed changes included in the Criminal Justice and Courts Bill are intended to ensure that those challenging the decisions of public bodies face "a fair level of financial risk", according to the government. They also include restricting the use of protective costs orders (PCOs) until permission to proceed with a case was granted and making applicants who take weak cases to a second chance hearing pay some of the other side's legal bills, as well as requiring the name of any party financially backing a case to be disclosed.

Lord Pannick, one of three Liberal Democrat peers who proposed the amendments, said that judicial review was "a vital means by which central and local government and other public bodies can be held to account".

"[The proposed reform] ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the government or other public bodies," he said. "If ministers have applied the wrong rule, or they decided a matter without giving a person a fair hearing, the court will say so and it will give a declaration, even if, on the particular facts, the error made no difference. This surely serves the public interest because the risk of a public hearing before independent judges encourages high standards of administration, and once the court has given its judgment, ministers and civil servants know that they must change their conduct for the future."

"Judges have ample powers, which they use, to dismiss hopeless or abusive cases. To those of your Lordships who think that there is too much judicial review and that it takes too long, I say that [the proposal] is a blunt instrument to use in such a sensitive context. It would impose an absolute duty on the court," he said.

However, Conservative peer Lord Horam said that the government had proposed the changes because it was "concerned … that we have fallen behind as a nation on infrastructure".

"Judicial review has and is causing delay to many projects up and down the country," he said.

"Judicial review is also undoubtedly abused [and] is very often used as a blocking device. It is meant to be about the process but very often the people who use judicial review are not concerned with the process; they are merely using it as a means to stop a particular development," he said.