Judicial Review: Challenging times ahead

Following months of political wrangling, culminating in what the Parliament website officially called ‘ping-pong’ between the Commons and the Lords, the changes to Judicial Review in the Criminal Justice and Courts Act 2015 finally received Royal Assent on 12 February. They will come into force when the Minister for Justice decides, which is likely to be at some point before Parliament dissolves at the end of March.

What is Judicial Review?

Judicial Review is used to challenge the decisions of public bodies, where those decisions may have been taken unlawfully, usually due to a failure to follow the correct procedure. It covers everything from planning decisions to electoral issues, via OAP travel passes and the burial of a certain Plantagenet monarch; it is, in short, the official means by which citizens hold those in power to account.

Why is Judicial Review being changed?

Judicial Review’s use has expanded significantly since the turn of the millennium and the government argues this is leading to judicial interference in the realm of elected decision makers. They also suggest there is a significant cost burden to revisiting an entire decision making process, particularly on bigger issues where the decision making process has taken years.

However, the vast majority of this increase in cases has come from immigration matters. The rise in civil judicial review claims has been quite small, from 1,730 in 2000 to 2,190 in 2013.

What are these changes?

The new Act makes it more difficult to successfully challenge a decision. It is now a defence to show that a decision reached unlawfully would not have been ‘substantially different’ if the proper procedure had been followed. Courts cannot fully replicate the decision making process, so in future, rather than forcing public bodies to make decisions lawfully, the decision may come down to how plausible they find the argument that the public body would have reached the same decision anyway.

There is an exception to this ‘substantially different’ test for matters of ‘exceptional public interest’. One might consider that there is always a very strong argument that having an accountable, law abiding government is of ‘exceptional public interest’, however whether this view survives the new legislation will be interesting. In all likelihood this test will apply to those cases with far reaching consequences, an example which springs to mind would be a challenge to the decision to construct HS2.

Conclusion

We wait to see the impact of these changes. In time the courts will give detailed guidance on the new law, but it is not yet clear what this guidance will be. Whilst some senior judges have given their views on the changes, their personal opinions may not accord with those they reach in court. On top of this, Labour have stated they will repeal these changes should they come to power in May. For now at least, uncertainty is the only certainty in this vital area of law.