Judicial review is a way of making sure that public officials, including ministers, keep within the law. Strictly speaking, it is a remedy rather than a process: lawyers speak of claimants “seeking judicial review” of a decision and it is something of a solecism to describe an application itself as “a judicial review” — although that usage is now widely accepted. Applications are made to the Administrative Court, which is part of the High Court and has an inherent supervisory jurisdiction to ensure that public bodies operate within their powers and in accordance with the law. To that end, the court can quash a decision if the claimant can establish what’s described as illegality, irrationality or procedural impropriety.
Last November, David Cameron made a speech to the Confederation of British Industry in which he promised to abolish unnecessary restraints on businesses, describing judicial review as a “massive growth industry” that the government needed urgently “to get a grip on”.
For two reasons, it was a curious audience for the prime minister to choose. First, as he had the grace to accept, an application for judicial review brought recently by a large business — Virgin Rail — had forced the Department for Transport to concede that there had been “significant technical flaws” in the competition for the lucrative West Coast main line, under which Virgin would have lost its franchise. The cost to taxpayers of cancelling the winner’s contract is estimated to be £40 million — although the cost to British businesses of giving the franchise to a company with inadequate resources would presumably have been much higher.
The second reason is that judicial review is not much of a problem for British business. As the government conceded in a subsequent consultation paper, the increase in applications has “mainly been the result of the growth in the number of challenges made in immigration and asylum matters”. In 2011, “these represented over three-quarters of all applications for permission to apply for judicial review”. Permission was refused in five cases out of six. And the Crime and Courts Bill, which is nearly through parliament, will soon transfer these cases from the High Court to specialist tribunal judges. That will make a “huge difference”, according to the Lord Chief Justice.
Even so, the government is concerned at the delay in weeding out hopeless cases. There is also concern that fear of judicial review is making public bodies over-cautious.
That view has been endorsed by senior officials. Speaking to The Times in January, the Cabinet Secretary Sir Jeremy Heywood complained that “the threat of judicial review imposes much more process on us than there used to be”. An unnamed special adviser, quoted in the same report, said the threat of judicial review “produces this great artifice of going through the motions with consultations that aren’t really consultations. They are only there to show the lawyers you’ve had a consultation.”
We shall see whether this is true of the government’s consultation on judicial review. Its main proposal is to abolish oral applications for permission in cases where there has already been some sort of prior judicial process or where a judge has already decided by reading a written application that a claim is totally without merit. Fees would increase from £275 to as much as £705, though these would not be paid by those qualifying for legal aid, so the change would have little effect on immigration and asylum claimants, who often have no means.
The paper attracted several highly critical responses. 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. The Bingham Centre for the Rule of Law said the proposals threaten access to justice and legal accountability. If judicial review has such a negative effect on decision-makers, the answer is to educate them in what the law requires. Most critics condemned the complete absence of empirical research or statistical justification for the government’s proposals.
Professor Maurice Sunkin of Essex University, who has conducted research into judicial review claims, believes the government is overestimating the failure rate at the permission stage. “The weakness of the evidence-base for these reforms is startling and worrying,” he said. “We can only hope that the government will take the consultation responses seriously and think again before introducing reforms that will undermine the integrity of the judicial review process without achieving the government’s desired aims.”
Past experience suggests that this may be a vain hope.