Lords block government's judicial review reforms

Government plans to speed up the judicial review process hit the buffers last night when the House of Lords rejected three key proposals in the bill.

The Criminal Justice and Courts Bill, published in February, includes proposals aiming to restrict the ability of objectors to use judicial review to hold up major developments. The Ministry of Justice's (MoJ's) aim, stated at the time, was "to deter claimants from bringing or persisting with weak cases".

Having passed through the Commons, the Lords yesterday evening voted to back three amendments allowing a greater degree of judicial discretion on some of the key measures proposed.

The first amendement, allowing judges to decide whether they can hear judicial review applications, was voted through by 247 to 181.

Cross-bench peer Lord Pannick, who moved all three amendments to the bill, said the clause in question "would prevent a judicial review application proceeding to a full hearing and any remedy … at the full hearing if the defendant shows that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred".

A second amendment, passed by 228 votes to 195, would allow judges to decide whether applicants should provide detailed information about their financial resources. The bill had proposed making it compulsory, which critics said would act as a deterrent in certain complex cases.

Peers also backed a third amendment, by 219 votes to 186 further granting judges the power to decide whether those who apply to the court to intervene in a judicial review case should pay their own costs. The move blocked the government's plans to make such a payment an automatic presumption.

Speaking about the first amendment, Pannick said the proposal "ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the government or other public bodies … even if, on the particular facts, the error made no difference".

He said the clause was unnecessary because "judges have ample powers … to dismiss hopeless or abusive cases".

Backing the bill, Tory peer Lord Horam, said the county had "fallen behind" on infrastructure, resulting in too few trains, houses and schools and congested roads because "judicial review has and is causing delay to many projects up and down the country".

Among the peers who voted against the government was former Conservative environment secretary John Selwyn-Gummer, who sits as Lord Deben.

He said: "I still think that it is unacceptable if we have a system whereby, if the government have behaved illegally, they cannot be brought to account in the courts."

Lord Deben described judicial review as "the British defence of freedom", adding: "As a mechanism, every now and again it is annoying to ministers. That should be a judgment of its correctness."

Defending the proposals, justice minister, Lord Faulks, said the clause "strikes a fair and sensible balance between limiting the potential for the abuse of judicial review and protecting its vital role as a check on public authorities".

Faulks said the use of judicial review had increased more than threefold from about 4,200 cases in 2000 to around 15,600 in 2013.

He used the example of a six-month delay in the development of a supermarket in North Yorkshire, following a legal challenge lodged by a commercial competitor, despite the judge labelling it as a "hopeless case" at the earliest opportunity.

He said: "It remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even years."

Faulks said that "crucial projects with direct implications for jobs" can be delayed and lost while such cases also "place a considerable burden on the public purse". 

A MoJ spokeswoman said: "We are disappointed with the outcome of the vote. The government will consider how to respond when the Bill returns to the House of Commons.

"These reforms are designed to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and not abused by people to cause delays or to generate publicity for themselves or their organisations at the expense of ordinary taxpayers."

The proposals in the bill, aimed at financial and procedural aspects of judicial review, were among a series of measures from the MoJ to speed up the process.

Other proposals, including the setting up of a specialist planning court and cutting the time limit to apply for a planning-related judicial review, have already come into effect.

The full debate can be read here.


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