As part of our ongoing focus on Judicial Review Claims, we turn to the recent Government announcement of fundamental changes to the Judicial Review regime.
The proposed changes remain, for now, in their infancy. The indications are that the options and opportunities for future challenge are likely to be diluted.
What is the current JR process?
Judicial review (JR) is essentially a procedure that allows a person or business or group to challenge the lawfulness of a public sector decision. Typically, such claims can be brought against a government department, a local authority, a regulator, a statutory entity (such as Police), or any other official body exercising a public function.
A JR claim must be brought promptly, but in any event must be formalised within 3 months of the relevant decision. Please see our recent article regarding the significance of JR timings and limitations here.
If the claimant succeeds in the JR then the decision can be declared unlawful and/or quashed and/or re-considered. A Claimant may also add damages and costs claims to the case.
The JR process is presently subject to 3 initial opportunities in securing “permission” to proceed with the JR. These are effectively “hurdles” that a Claimant must clear in order for the matter to proceed to a full hearing. The initial criterion is satisfied if the Claimant can establish an ‘arguable’ case.
- A formal application to the Court which is considered on paper, with a written response;
- An oral hearing at the High Court if written permission is denied; and
- An Appeal to the Court of Appeal if permission is denied at the oral hearing.
Why the need for change?
The official line cites two primary limbs:
- That the Judicial Review regime is being manipulated by “objectors” to engineer delay and resistance; and
- That such delays necessarily obstruct the progress of major, national infrastructure projects. The Government suggests that 58% of all recent decisions on ‘major infrastructure’ projects have been challenged in Court.
A cynical view might suggest that the Government simply wants to reduce the scope for challenges.
Another perspective advances the constructive argument that delays and challenges stifle progress and add costs to the public purse.
A more insightful question (perhaps) is whether investment in the Courts/Tribunal Service and a fair and balanced modification can reduce delays whilst still preserving the important right of public challenge.
What reforms are proposed?
Lord Banner KC was tasked with leading an independent review into legal challenges brought against ‘Nationally Significant Infrastructure Projects’. (NSIP) His report was published in October 2024 – and is essentially the trigger for the recent Government announcements.
His summary recommendations were 2-fold: (1) to limit the scope for JR claims in NSIP cases; and (2) to ensure a speedier resolution of such claims when they are escalated.
Lord Banner also recommended that it was “excessive” for potential claimants to have three opportunities to seek permission (as noted above). The Government has now indicated an intention to implement changes:
- To withdraw the written permission stage in its entirety.
- If, at the oral permission hearing, the case is deemed as totally without merit then there is no scope to appeal further.
- Likely an increased burden on claimants to suffer fees payments and/or costs liabilities.
The effect, in practice, means a singular bite at the cherry for JR claimants in most circumstances and an expectation that the case (on the day) is persuasive. It offers no recourse for errors, or misunderstandings, or poor performances.
Not only will these changes limit the challenge to only one opportunity, but a potential further consequence will be the deterrence of would be objectors who are unwilling to lay down their challenges in an open forum. Only those with the strongest objections and willing to contest such robustly and verbally, rather than by a simple written submission, will be able to secure permission.
Will it affect the full spectrum of JR cases.
It is uncertain as to whether the proposed changes will affect only NSIP cases, or will extend to all matters of JR. It should be noted that in 2013, the Government reduced the scope for JR claim in planning decisions (applications and permissions) to 6 weeks (from 3 months).
The new proposals carry a huge significance – and whilst the Banner Review was concerned primarily with NSIP cases, it would not be surprising to see the new regime rolled out across the full JR spectrum. If not immediately, then possibly later.
What are the concerns?
The has been much coverage in the media attempting to sensationalise the purpose of JR claims, as a means of obstruction, rather than as a tool for accountability.
This includes examples of delays in the development of Sizewell C Nuclear Power Plant, which was delayed by a challenge that the government had not considered the need to provide drinking water to the site during construction. Also, the £100m “bat tunnel” for HS2 and the “acoustic fish deterrent” for aquatic management at Hinckley Point C Power Plant.
The media reports are designed for mass interests and often miss the finer (and more important points) regarding accountability, conservation, unfairness and the loss of rights to challenge.
The Government appears to be focused on delay and cost – and the need for unobstructed progress with Nationally Significant Infrastructure Projects. There is merit in such objectives, but there must be a desire to secure a balance for access to justice.
Opponents of the changes will say that a better solution is to apply investment to the Court Service to ensure that resources are available to deal with cases more efficiently.
No doubt JR fulfils a critical function in the hybrid world between the political and legal spheres. The “value” in JR should not be underestimated.
At Dyne Solicitors we regularly act for claimants in JR cases against the Environment Agency, Police, HMRC, Department for Transport and other public agencies. These are not trivial cases. They are not attempts to resist or obstruct. They are always matters of genuine and serious importance to the claimant business and/or the affected individuals. Such claimants deserve (and expect) a fair and balanced rights to challenge unlawful, irrational or improper decisions. These rights should not be eroded, nor conceded without careful and measured examination.
For further advice and support, please contact Alex Sandland today.