Why proposed changes to Judicial Review have us worried

Rachel for blogOn 6th September 2013, the Government opened up an eight week consultation on proposed reforms to the Judicial Review (JR) process. 

The Government sees the proposed reforms as a way of speeding up the process of bringing and resolving a claim, thereby reducing the burdens on the court system and public services. 

However, if the proposals are passed, there is a worry that these reforms could have a serious effect on the ability of the public and the judiciary to hold the Government to account. 
Furthermore, when considered alongside the recent Lobbying Bill, the reforms could be seen to pose a threat to the voluntary and community sector’s (VCS) independence to campaign freely – something enshrined in  Principle 1 of the Compact, which states that Government must undertake to:

'Respect and uphold the independence of CSOs to deliver their mission, including their right to campaign, regardless of any relationship, financial or otherwise, which may exist.'
Compact Voice is also concerned that the consultation has only been open eight weeks, going against Principle 2.4 of the Compact, which states that Government must undertake to:
“Where it is appropriate, and enables meaningful engagement, conduct 12-week formal written consultations, with clear explanations and rationale for shorter time-frames”.
While efforts have been made to engage with relevant stakeholders through a variety of methods the short consultation time is disappointing as it can prevent meaningful and effective engagement.  

What is JR and why is it important? 
Judicial Review differs from other forms of litigation. Other forms of litigation are there to undo wrongs done to an individual; they protect private rights. Judicial Review is there to prevent abuse of power by the state; it allows for citizens to hold the government to account. 
JR is particularly important to marginalised groups who may not be well represented in law - JR brings their cases to the attention of judges. Judges do not pass judgement on the merit of a policy but the lawfulness of the procedures used to reach that decision. 
In this blog, I will briefly outline an area that is of particular concern to the VCS, in that it could threaten its independence and right to campaign. 
The issue of ‘standing’
“Standing” is the legal term for who is permitted to bring a case to court. At the moment, in JR the judge will determine whether a claim has ‘standing’ by applying a test to determine whether the claimant can show ‘sufficient interest’ in the matter. 
This test is normally quite liberally applied by judges because a bad decision needs to be challenged, meaning that a VCS organisation has the ability to bring a case forward to JR if they have ‘sufficient interest’ or an individual claimant is not available. 
An example of this is when the organisation Medical Justice successfully challenged the UK Border Agency’s policy to deport failed asylum seekers with less than 72 hours notice. There were no claimants with a direct interest who could bring these proceedings because they were no longer in the country. 
The government proposes to restrict access to JR to only those who can show they are directly affected by the matter. The proposals allow for the individual claimants problems to be solved but restrict the judiciary’s ability to find the policy process unlawful.

The Government maintains that JR is used as a campaigning and publicity tool by those with no direct interest. The counter argument is that the judiciary already have the means in place to stop the use of JR for publicity, so there is no need to place further restrictions on this. 

What would the proposed changes mean?

The proposed changes to JR would mean that it could become almost impossible for a VCS organisation to bring forward a case, as they may not be able to show they have a direct and tangible interest in the outcome of the proceedings.

This could ultimately mean that some decisions by public bodies could become unchallengeable if directly affected individuals cannot be found, and VCS organisations are effectively barred from using JR.

Proposed reforms around ‘standing’, alongside other reforms outlined within the current consultation, display a certain amount of confusion around the basic principles of JR.

All citizens should be allowed to have an interest in the proper administration of their society and public-decision makers need to be held to account - this is why Judicial Review is important, and why some of the proposed changes are cause for concern.

More details can be found in our consultation response, which raises a few other concerns besides those mentioned above.

For more information about JR, take a look at the Public Law Project’s work.

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