MoJ presses ahead with key reforms to judicial review

The Ministry of Justice has confirmed that it plans to press ahead with a number of flagship reforms to judicial review – including a new Planning Court – as the Criminal Justice and Courts Bill was introduced to Parliament today.

In its response to the consultation Judicial Review: Proposals for further reform, the MoJ said it had concluded that “reform is necessary to address the problems it had identified and to help ensure that in future judicial review is used appropriately”.

The response confirmed previous announcements that:

  • A specialist Planning Court would be created within the High Court to deal with an estimated 400 planning cases including those relating to nationally significant infrastructure projects.
  • A lower threshold would be introduced for when a defect in procedure would have made no difference to the original outcome. “The Government will also establish a procedure to allow this to be considered earlier in the case at the permission stage.”
  • Appeals will be able to ‘leapfrog’ directly to the Supreme Court in a wider range of circumstances by expanding the criteria for such appeals, removing the requirement for consent of both parties, and allowing more leapfrog appeals to be brought from more courts and tribunals.

The MoJ said it would also be taking forward a set of reforms to certain financial aspects of judicial review, “the aim being to deter claimants from bringing or persisting with weak cases”.

The Ministry claimed that the reforms would end “the current situation where individuals and campaign groups can cause expensive delays with no cost or risk for themselves”.

The consultation response sets out action that will be taken in respect of legal aid for judicial review cases, oral permission hearings, protective costs orders (PCOs), wasted costs orders, interveners’ costs and third party funding.

PCOs for example will be limited to exceptional cases with a clear public interest. The changes will also see disclosure of those who back a judicial review financially, while interveners will become “responsible for paying their own way”.

“In future these parties [interveners] will also have to compensate other parties if they cause them to run up greater legal bills unnecessarily,” the Ministry said.

However, the MoJ has ditched its original proposals to change the test for standing.

“The Government considers that these changes are a more effective means of reducing the number of unmeritorious judicial reviews that are either brought or persisted with than changing the test for standing,” the Ministry said.

The reforms in relation to procedural defects, various financial elements of the reforms and leapfrogging are provided for in the Criminal Justice and Courts Bill. Other elements in the overall reform package will be taken forward by means of secondary legislation, the MoJ said.

It also announced that “having considered the responses to the consultation”, the Government did not intend to make any changes to the scope of legal aid for planning challenges under sections 288 and 289 of the Town and Country Planning Act 1990, or to the ability of local authorities to challenge infrastructure projects.

Justice Secretary Chris Grayling said the new Planning Court would see legal disputes over major developments fast-tracked for consideration by specialist judges.

He added: “Judicial review must continue its role as a crucial check on the powers that be – but we cannot allow meritless cases to be a brake on economic growth. That would be bad for the economy, the taxpayer and the job-seeker, and bad for confidence in justice.

“These changes will bring balance to the judicial review system, so justice is done but unmerited, costly and time-wasting applications no longer stifle progress.”

The MoJ claimed that there had been “a huge growth” in the number of judicial review applications in recent years and that only a small proportion succeeded. However, its analysis of the figures has been hotly disputed by a range of organisations.

Earlier this year the Law Society vowed to use “all appropriate resources” in opposing Government plans to restrict judicial review.

The resolution was agreed in the aftermath of a special general meeting in December where a motion of no confidence in the president, Nick Fluck, and the chief executive, Des Hudson, was passed over their handling of negotiations with the Ministry of Justice in relation to criminal legal aid reforms.