Judicial Review

Professor Robert Lee | 7 years ago

david-cameron-annual-conference-2012

As widely reported in the Press, speaking at theCBI conference in November, David Cameron slated judicial review as a “massive growth industry” which was delaying action and costing taxpayers too much money.

One good, recent example of a judicial review application that has cost the taxpayer a considerable sum of money is the challenge to the tender process for the West Coast rail franchise, which resulted in £40m of compensation for the four bidders in the process. The case serves as a reminder not only that Government can get it wrong but also that challenges are not always brought by meddlesome busybodies but are also actively pursued by the very members that the CBI represents.
Cameron is on record as saying: “We urgently needed to get a grip on this. So here’s what we’re going to do: reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting.”
He also added that he was “calling time” Equality Impact Assessments, adding that: “You no longer have to do them if these issues have been properly considered… We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff.”
Leaving aside the extraordinary contention that it is no longer necessary to undertake equality assessments because they are already being done, it is interesting to consider Cameron’s other remedies to restrict the growth industry. In passing, however, it should be said that, outside immigration and asylum cases, the figures for the growth industry of judicial review hearings, including planning which Cameron specifically mentioned, show a steady state with 2228 in 2006 falling to 2213 in 2011.
Raising the court fee seems an improbable solution. Applicants for judicial review already risk an order for legal costs which is likely to dwarf any court fee, even assuming that a higher court fee would deter challenges to the sort of major infrastructure developments that Cameron seemed to have in mind. Tightening time limits, which are already heavily constrained, may well mean poorer quality applications rather than cases brought in the light of careful, studied legal advice.
So the solutions would look ropey even if there were no problems posed by the inconvenient matters of international obligations and European Union law. These seem strange announcements, however, in the light of difficulties with time limits posed by the ECJ decision in 2010 in Uniplex, which Carnwath LJ (as he then was) ruled would remove the requirement for promptness, in cases in which EU law was invoked (such as environmental impact assessment). As for court fees, the UK is already facing infraction proceedings before the ECJ for failing to ensure that access to justice is not prohibitively expensive in line with the requirements of the Aarhus Convention.
How is it that Government advisers were unaware of such developments? As with the recent announcements on energy pricing, it seems more and more the case that the notes used by the Prime Minister on these occasions are written on the back of a cigarette packet.

One good, recent example of a judicial review application that has cost the taxpayer a considerable sum of money is the challenge to the tender process for the West Coast rail franchise, which resulted in £40m of compensation for the four bidders in the process. The case serves as a reminder not only that Government can get it wrong but also that challenges are not always brought by meddlesome busybodies but are also actively pursued by the very members that the CBI represents.

Cameron is on record as saying: “We urgently needed to get a grip on this. So here’s what we’re going to do: reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting.”

He also added that he was “calling time” Equality Impact Assessments, adding that: “You no longer have to do them if these issues have been properly considered… We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff.”

Leaving aside the extraordinary contention that it is no longer necessary to undertake equality assessments because they are already being done, it is interesting to consider Cameron’s other remedies to restrict the growth industry. In passing, however, it should be said that, outside immigration and asylum cases, the figures for the growth industry of judicial review hearings, including planning which Cameron specifically mentioned, show a steady state with 2228 in 2006 falling to 2213 in 2011.

Raising the court fee seems an improbable solution. Applicants for judicial review already risk an order for legal costs which is likely to dwarf any court fee, even assuming that a higher court fee would deter challenges to the sort of major infrastructure developments that Cameron seemed to have in mind. Tightening time limits, which are already heavily constrained, may well mean poorer quality applications rather than cases brought in the light of careful, studied legal advice.

So the solutions would look ropey even if there were no problems posed by the inconvenient matters of international obligations and European Union law. These seem strange announcements, however, in the light of difficulties with time limits posed by the ECJ decision in 2010 in Uniplex, which Carnwath LJ (as he then was) ruled would remove the requirement for promptness, in cases in which EU law was invoked (such as environmental impact assessment). As for court fees, the UK is already facing infraction proceedings before the ECJ for failing to ensure that access to justice is not prohibitively expensive in line with the requirements of the Aarhus Convention.

How is it that Government advisers were unaware of such developments? As with the recent announcements on energy pricing, it seems more and more the case that the notes used by the Prime Minister on these occasions are written on the back of a cigarette packet.

 

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.