Rhion Jones comments
Lawyers are beginning to express concern about the threat to Judicial Review – all revealed in a little-noticed paragraph in the Conservative Manifesto. Although probably driven by resentment at the Supreme Court judgment in the Prorogation case, many people fear that it is mostly motivated by Ministers’ hatred of being challenged on policy matters. A decade ago, there was an attempt to curb access judicial review, but few of the proposals were implemented; the House of Lords was particularly unconvinced. This time around, environmental pressure groups are worried. Aarhus-related challenges are already down year-on-year and there are fears that a future Government might make it even more difficult to challenge planning decisions. Also, remember that the ability to expose consultations to legal scrutiny is an important safeguard for consultees. If Boris Johnson wins a majority, we will need to watch this space ….
Article:
Summary
The Conservative Manifesto 2019 includes a promise of judicial review reform. This blog discusses why the Conservative Party has included this pledge and what this could mean for Planning.
Introduction
Given the unprecedented political circumstances that have led to the UK General Election, at first glance it seems an oddity that the Conservative Party’s Manifesto should include the promise of judicial review reform. This is hardly something that the electorate is clamouring for or which otherwise seems a priority at this time and that no doubt explains why: (1) none of the other main parties have made similar pledges; and (2) why the Conservative Party’s own promise is tucked away on page 48 of their manifesto.
But one does not have to read too deeply into the promise itself to understand that, whilst this may not be intended as a headline-grabbing/social media-friendly vote winner, it is directly linked to the fraught domestic politics of the last three and a half years. Or to put it more succinctly: Brexit.
This blog considers the manifesto pledge and its potential implications in the light of previous reforms to judicial review.
The Conservative Manifesto Pledge
Under the heading ‘Protect our democracy’, initial praise of the UK’s Constitution and legal system gives way to some all-too-familiar rhetoric about the failure to deliver Brexit and where the blame for that apparently lies, before a long-term plan for constitutional reform is set out: “After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people”.
On the first of these aspects, the manifesto pronounces: “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state while ensuring that it is not abused to conduct politics by another means or to create needless delays”.
The concluding pledge is to set up a ‘Constitution, Democracy & Rights Commission’ in the first year to “examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates”.
Without any further detail about the proposed Commission’s composition and remit, it is impossible to know what this really means for the future of judicial review under a Conservative Government, i.e. whether what is being contemplated is fundamental change or something of a more tinkering nature. But there are perhaps some things that can be looked to for clues as to where this may be going.
Recent reforms
What the manifesto doesn’t acknowledge – and it is easy to forget given the fast-moving (but paradoxically static) politics of the last few years – is that judicial review has been the subject of relatively recent reform. In 2012 and 2013, the Ministry of Justice issued two consultation papers with proposals for reform. In the Government’s response paper in February 2014, Chris Grayling, the then Secretary of State for Justice wrote: “In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool or simply to delay legitimate proposals”. Sound familiar?
It may be then that the Conservatives are simply following a trajectory of judicial review reform that they first embarked on in 2012.
Those previous reforms were targeted at certain types of public decision making and planning decisions in particular. The reforms included:
- Reducing the time limits for bringing a judicial review from three months to six weeks in planning cases;
- The creation of the specialist Planning Court with fast tracking for major cases; and
Removing the right to oral renewal at the permission stage where the case is assessed as being totally without merit. The driver for these changes was the economic climate and, in the arena of planning, a concern that judicial review was delaying development by taking too long and costing too much, thereby adversely affecting economic recovery and growth. In this regard, the 2013 consultation paper contained a number of anonymous case examples, one of which was unmistakably, due to its unusual facts, a case that we worked on – namely R (Coleman) v London Borough of Barnet & Etz Chaim Primary School. We acted for the Interested Party, the Governors of a free school whose planning permission to convert a former garden centre to the school premises was unsuccessfully challenged on the basis of the public sector equality duty. Based on that experience – the case was long and expensive, featuring multiple interim injunction applications and a failed appeal – and other cases that we acted on at that time (for example, R (Cherkley Campaign) v Mole Valley DC & Longshot, a similarly protracted case concerning the redevelopment of Cherkley Court as a luxury hotel and golf course), we can speak to the issues that the Government was grappling with and seeking to address through these reforms.
The bigger picture
But one cannot ignore the context of this General Election and the obvious driver behind this manifesto pledge – namely Brexit and the Conservative Government’s continuing ire at being found to have acted unlawfully in both its decisions to initially trigger Article 50 without recourse to Parliament and then, more recently, to prorogue Parliament itself. This background, combined with the explicit link in the manifesto with the failure to deliver Brexit and the suggestion that judicial review is politicised, suggests that the Conservatives envisage some more fundamental reform of judicial review. Could they perhaps be contemplating changes to standing or introducing a mechanism to strike out challenges that are deemed political? Or, indeed, taking some decisions outside the scope of judicial review altogether?
Aside from the old adage about hard cases making bad law, revenge is not a good motive for legislative change either. Moreover the notion that some judicial reviews are political and some are not misunderstands the very nature of judicial review and its role in the UK Constitution.
All judicial review proceedings are the result of politics of some kind, whether those of neighbours around the determination of a minor planning application or the high level Westminster politics of Brexit; after all, no claimant bringing a judicial review ever agrees with substantive decision that they are challenging – they simply wouldn’t bother otherwise. The Courts, however, determine such proceedings on the basis of the lawfulness of the public decision, not its substance. And that is the beginning and end of judicial review – it is a supervisory process to ensure that public decisions are taken lawfully, not a means for the Court to substitute its own judgement for that of the decision-maker.
Stepping back, the fact that judicial review process held the Government to account in two high-profile instances where it had acted unlawfully is nothing more than the process doing what it is supposed to do and ultimately fulfilling its Constitutional role. So it can be concluded that the motivations for change here are different to the previous reforms and, rather than this being driven by the Courts interfering in politics, this is politics interfering with the role of the Courts and the rights of UK citizens.
There is an even bigger picture at play then. There are, of course, a lot of “ifs” here and we shall see what happens, starting first with the outcome of the General Election on 12 December. However, what the Conservative Party’s Manifesto does tell us is that, as an indirect result of an advisory referendum three and a half years ago, potentially UK citizens’ rights could end up changing within the UK, not just the EU.
Article originally appeared on JDSUPRA
The Institute cannot confirm the accuracy of this story or confirm that it presents a balanced view. If you feel this is inaccurate, we would welcome your perspective and evidence that this is the case.
