Attack on judicial review

A new consultation on Judicial Review

On 5 September 2013 the Government’s response on the Transforming Legal Aid consultation indicated that a further consultation on the discrete area of judicial review would be published. This has now been issued and is available here. The new consultation’s focus is broader than just legal aid issues. The proposals will impact on the procedure and time limits to bring judicial review; who will be able to issue a claim to hold the State and public bodies to account; and the ability of individuals to access the court. The deadline to respond to the consultation is 1 November 2013 and we would encourage everyone to respond.

In the original Transforming Legal Aid consultation the Government proposed that legal aid will only be paid for the work carried out in judicial review cases if the High Court grants permission for the case to proceed beyond the first stage. This means that solicitors (and barristers) will bear the financial risk of not being paid for substantial work in judicial review cases. Most of the responses the Government received to this proposal were negative. Many respondents argued that:

·          Many meritorious cases end after issue but before the permission hearing without a costs order in favour of the individual Claimant. Work carried out by solicitors and barristers on these cases would cease to be paid even where a substantive benefit was achieved for the client;

·          The existing legal aid merits test is sufficient to prevent weak cases from being brought and causing unnecessary costs;

·          The proposal will result in a “chilling effect” where providers will be reluctant to take on judicial review cases, however important the matter may be to the Claimant and to wider public policy;

·          It is often difficult for providers to obtain a costs order from the defendant;

·          It will result in other unforeseen costs within the courts system;

·          The proposals rest on faulty analysis and incomplete data; and

·          During the course of debates in Parliament on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Government agreed that public funding must be made available for judicial review given the important constitutional role it plays as a check on executive power.

In response to these criticisms, the Government maintains that reforms to judicial review are required to prevent unmeritorious cases wasting public money. In its new Consultation “Judicial Review: proposals for further reform”, the Government suggests the proposal goes ahead as planned but for one change: the Legal Aid Agency will have a discretionary power to pay providers for work carried out on cases where permission is refused if certain criteria is met. The criteria includes an explanation as to why the provider was not able to recover its costs from the Defendant and what benefit the client achieved by bringing proceedings. Given this power to award funding is discretionary, YLAL is concerned that providers will still be discouraged from conducting judicial review work due to the financial risk of not getting paid.

Additionally, the new Consultation includes further proposals to reform judicial review. These include:

·          Streamlining the judicial review process in planning cases. This is in response to a problem the Government perceives in judicial review frustrating economic growth by delaying big development projects;

·          Changes to the rules on “standing” to make it harder for campaign groups using judicial review as a means of challenging Government policy. YLAL is very concerned this proposal will limit the ability of groups to challenge unlawful behaviour by the State;

·          Changes to the rules in judicial review cases challenging “procedural impropriety” by a public body. YLAL is concerned that this proposal will allow public bodies to escape responsibility for failing to follow procedures, such as conducting a consultation before changing policies, if this proposal is brought into effect;

·          Exploring alternative ways to resolve disputes regarding public sector equality duties other than by way of judicial review; and

·          Increasing the use of the leapfrog procedure so that appropriate judicial review cases are brought before the Supreme Court more quickly.

YLAL will be submitting a full response to the new Consultation by the deadline of 1 November 2013 and would welcome contributions from members. Please email us on if you would like to help.