Judicial Review Reforms
In May last year I wrote a blog summarising the judgment of the High Court in the much publicised judicial review claim regarding the remains of Richard III.
On 26 March 2015 Richard III will be reinterred at Leicester Cathedral in a ceremony that is anticipated to be ‘fit for a king’. Although the pageantry of the ceremony is most likely to be ceremonial what should not be forgotten is the importance of the judicial review process that preceded it.
Judicial review is a unique form of Court proceedings which allows a party with a ‘sufficient interest’ in a decision made by a public body to make an application to the Court to ask it to review the lawfulness of that decision. It is seen by many as a cornerstone of our constitution which allows members of the public to call decision makers to account.
There have been many high profile judicial review cases such as:
- The successful claim made by Gurkha veterans which led a Judge to conclude that the Home Office had applied irrational and unlawful restrictions when considering visa applications made by Gurkhas. The Home Office was ordered to pay in the region of 80% of the costs of the successful Applicants and to revisit its policies.
- Last but not least the recent Richard III judicial review in which the Applicants, claiming to be descendants of Richard III, sought to challenge the decision of the Justice Secretary to grant an exhumation licence to the University of Leicester without consulting or revisiting that decision once the identity of the remains was announced. This judicial review was unsuccessful and Chris Grayling, the current Justice Secretary, did not mince his words once judgment had been delivered remarking that “This case, brought by a shell company set up by the Alliance to avoid paying legal costs, is an example of exactly why the Government is bringing forward a package of reforms to the judicial review process”.
- In late February this year the promised ‘package of reforms’ was delivered in the shape of the Criminal Justice and Courts Act 2015. Part 4 of the Act relates to judicial review and will come into force on a date to be announced in the future.
In summary the main reforms in the Act are as follows:
- When considering an Application for judicial review a Judge must refuse to grant relief in circumstances where it appears to the Court to be ‘highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. This requirement can only be disregarded if it is appropriate to do so for reasons of exceptional public interest. The practical effect being that fewer Applications for judicial review are likely to be granted permission to proceed.
- Applicants will be required to provide the Court with information about the funding of the claim, to include the source, nature and extent of those financial resources. If the Applicant is a corporate entity and it cannot show sufficient financial resources it will be required to provide financial information about its members. If a particular person appears to be funding a judicial review claim the Court can take that into account when considering who should be liable to pay any Order for costs that may be made.
- Interveners (who are usually charities who appear in the proceedings to provide the Court with additional guidance) may now find themselves the subject of an Order for costs if they are held to have behaved unreasonably or if their evidence has not been of significant assistance to the Court. This will inevitably deter charities, whose finances are limited in any event, in taking steps to intervene in proceedings.
- Protective Costs Orders, unique to judicial review proceedings which allow a party to obtain an Order that it will not be liable for the other side’s costs (or liable for only a fixed proportion of their costs) in the event of a loss, will now only be available when permission to proceed has been granted.
Whilst the Secretary of State for Justice says that he ‘believes in protecting judicial review as a check on unlawful executive action’ it is highly likely that the above reforms will have the effect of reducing the amount of judicial review claims made each year. In the year of the 800th anniversary of the Magna Carta, which holds at its centre a belief that political power cannot be unrestrained, are the above reforms an affront to justice?