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Recent Developments in Judicial Review
David Fletcher, St John’s Chambers
Background to the Ministry of Justice Consultation Paper of September 2013
1 The reforms introduced in April 2013 as a result of the Consultation Paper (CP) of December 2012:
(a) Shortening of time limit for filing of claims to six weeks for Judicial Review (JR) of planning decisions.
(b) Removal of the right to an oral renewal hearing where a case is assessed by a judge on paper as totally without merit.
Note: Proposed introduction shortly of a fee for oral renewal hearings.
2 General philosophy behind the Consultation Paper
Generalised assertion that unmeritorious JRs cause delay and cost and are pursued for publicity reasons and frustrate proper decision-making.
This general philosophy invites the following responses:
(a) The purpose of the screening process (strengthened in the April 2013 reforms) is to prevent unmeritorious cases getting through. The statistics show permissions granted in only one in six cases.
(b) In addition the court now exercise a power to strike out unmeritorious cases: see for example Hartleyburn Parish Council v SSCLG [2013] EWHC 1650 (Admin), Order of His Honour Judge Behrens sitting in Leeds striking out a s288 appeal and granting summary judgment to the defendant on the basis of no reasonable prospect of success.
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(c) Evidential basis for the assertion that unmeritorious cases are being pursued for publicity reasons is not clear from the CP. Note however the low success rate of JR: in 2011 out of approximately 11,000 claims issued, permission given in 1,200 (after 4,800 withdrawn), substantive hearing in 422 cases of which 163 were successful.
(d) The CP constantly begs the question when asserting the JR is being pursued "after all proper decisions have been taken". This of course is the very issue that has to be decided on a JR application.
(e) The issue of delay is fundamental to the thinking behind the report. This invites the following issues to be considered:
(i) It is a matter of court administration to ensure that cases come on for trial without delay. There is a mechanism in CPR 54 for expediting cases.
(ii) In planning cases, in July 2013 a Planning Fast Track was introduced with a specialist planning liaison judge reviewing all cases and with shortened time limits for all procedural stages. (iii) A major cause of delays has been the clogging up of the court
with immigration and asylum cases. These are now to be hived off to the Upper Tribunal (which now has an Immigration and Asylum chamber). As these account for 76% of the total applications in 2012, this ought to make a dramatic difference to the delays in getting a hearing.
(f) Growth: the CP relies on a fundamental assertion that JR applications have doubled in recent years. Proper analysis of the statistics however shows that this is not really the case with civil and criminal JRs generally, the increase having been in the field of immigration and asylum cases (now to be hived off). It is therefore misleading to suggest that procedural delays are holding up legitimate economic development.
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(g) Costs: the CP asserts that unsuccessful JR applications cause cost to the public sector for defending them. This ignores the fact that an unsuccessful claimant would normally have to pay the successful claimant's costs unless protected by a Protected Costs Order (PCO).
Summary of the main proposals
1 Planning: introduction of a specialist land and planning chamber.
2 Proposed limits on the ability of a local authority to challenge national infrastructure projects and changes to s288 and s289 appeals.
3 Restrictions on legal aid in particular in relation to statutory challenges under s288 and s.289.
4 Changes to restrict the definition of locus standi to make it harder for interest groups.
5 Changes to make it harder to mount procedural challenges.
6 Various cost changes adverse to applicants and restricting PCOs.
1 Planning: introduction of specialist land and planning chamber
Avenues currently available in planning for JR and appeals:
s288 High Court appeal against refusal of planning permission, s289 High Court appeal against enforcement notice.
Judicial Review by person aggrieved by planning decision.
s118 JR under 2008 Act against Secretary of State decisions on national infrastructure projects.
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Planning Fast Track introduced July 2013 to identify planning related JRs and challenges and refer to specialist judges. Strict time limits for paper applications, oral renewals and substantive hearings. Notwithstanding these recent reforms, the CP is now proposing a further radical change, namely creation of a specialist planning chamber of the Upper Tribunal and transfer of all JRs and statutory challenges to that chamber (to be renamed the Land and Planning Chamber).
Comments on this proposal:
(a) Statistics indicate relatively small number of planning JRs and High Court appeals.
(b) Not clear why a new system is now needed in the light of very recently introduced fast track system.
(c) This change will centralise the hearing of planning cases and runs counter to the devolution of powers to the provinces and the creation of the local jurisdiction in Bristol and Cardiff.
(d) In any event the same pool of judges will hear cases whichever system is adopted.
2 Restriction on the ability of a local authority to challenge decisions on national infrastructure
These decisions are subject to the provisions of the Planning Act 2008 and the Growth and Infrastructure Act 2013.
It is unclear why the Secretary of State now proposes to restrict JR in these cases, particularly having regard to the fact that the CP records that no challenges have been made by local authorities to infrastructure projects in the period since March 2010.
Page 5 of 10 3 Legal aid restrictions
Legal aid for JR is already restricted under the Legal Aid Sentencing and Punishment of Offenders Act 2012. The CP proposes a number of further restrictions on legal aid, in particular:
(a) Legal aid will not apply to statutory challenges under s288 and s289, in e.g. cases of potential homelessness.
(b) Work carried out at permission stage will not qualify for legal aid if permission is not granted.
In response to this proposal, a list of eminent administrative law QCs have sent a letter of protest, maintaining that the cumulative effect of the legal aid changes will seriously undermine the rule of law.
4 Restriction of the definition of locus standi
The CP proposes to restrict the legal definition of 'sufficient interest'. The question of locus standi is normally decided at final hearing stage. The CP is based on the premise that the courts have taken an over-expansionist approach to the question of locus standi. This applies principally to JR challenges on broad issues of policy and major public projects. On such issues, courts have tended to take a broad view: for example:
HS2 residents directly affected by the railway line clearly have a sufficient interest. JR claims have however also been permitted on behalf of major interest groups regardless of whether they have a direct economic interest.
(e.g. HS2 Alliance, Greenpeace)
The editor of the Times has been held to have locus standi to challenge the Foreign Secretary's decision to ratify the treaty on the EU (R v SS for Foreign and Commonwealth Affairs ex parte Rees Mogg [1994] QB 552.
In environmental cases the Aarhus Convention and the EU Directive 2011/92 give access to justice rights to the 'public concerned'. Here a broad view is required to be taken.
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The CP proposes some narrower test of locus standi, presumably as a means of restricting the ability of interest groups and campaigners to delay major projects and challenge policies. The problem for the government is that challenges to policies and major projects are becoming more frequent.
5 Restriction of the right to mount procedural challenges
In cases of procedural defect, at present the courts have to consider a 'no difference' argument, i.e. the court has a discretion to dismiss a claim if the correct procedure would have made no difference.
The CP cites to illustrate what the government regards as a problem the following cases:
R (Smith) v North East Derbyshire PCT [2006] EWCA Civ 1291 – decision on the provision of general practitioner services challenged on the basis of lack of proper consultation. In considering whether consultation would have made a difference, the Court of Appeal applied the test whether the result would inevitably have been the same (May LJ at paragraph 10). This test is well established on the authorities.
The CP is critical of the Derbyshire case at applying too high a threshold. This however is a matter developed in case law and in any event an issue of this kind will require detailed consideration by the court, whatever legal test is applied. It is arguable that an issue of burden of proof is really a matter for the courts.
R (on the application of the Association of PI Lawyers) v SSJ [2013] EWHC 1358 (Admin). This case concerned the government's reform of the no win no fee CFA agreement system. The reform reduced fixed costs for PI claims. The claimant alleged the Secretary of State was under a duty to consult. Meetings with the insurance industry had in fact taken place. The Divisional Court held:
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(a) No duty to consult arose – the government had simply undertaken discussions with interested parties. No implied duty to consult with everybody. There was no formal consultation policy.
(b) Had the court decided otherwise, it would have decided that the consultation would not have caused the government to form a different view.
Comment: It is not clear why reform of the locus standi principle is thought to be necessary. This appears to be another instance of the government seeking to restrict the ability to mount JR challenges, but the issue is arguably a matter primarily for the courts to work out.
Recent cases on the issue of consultation
General principles applicable to consultation:
(i) An obligation to engage in public consultation may arise: (a) in consequence of a specific statutory provision,
(b) because it arises from Article 6 of the 2011 Directive in an environmental decision,
(c) common law – here the principle is 'legitimate expectation' and the issue is whether the conduct of the government has given rise to an implied duty to consult,
(d) it is well established that if the government elects to carry out a consultation exercise (even though not obliged to), it should carry it out thoroughly:
R (on the application of Greenpeace) v SSTI [2007] EWHC 311, decision to embrace nuclear energy in breach of an obligation to carry out thorough public consultation.
(e) the Medway case (R v Medway Council and others v SST [2002] EWHC 2516) establishes that consultation is simply an aspect of fairness.
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(ii) It is further established in Coughlan (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213) that:
(a) consultation must be carried out when the proposals are at a formative stage,
(b) proposals must be set out sufficiently clearly for an intelligent response, (c) adequate time must be given to consultees to respond, and
(d) the product of consultation must be conscientiously considered and taken into account.
(iii) Finally, it is established by R (J L Baird and Environment Agency [2011] EWHC 939 (Admin) that the court must consider whether the process was so unfair as to be unlawful. The issue is not just whether something went wrong, but whether it went clearly and radically wrong.
The HS2 litigation (R (Buckinghamshire County Council and others v SST and HS2 Ltd [2013] EWHC 481: consolidated hearing of five claims with a total of seven issues, a major issue being consultation. Three of the claimants went to the Court of Appeal on the following issues:
(i) Failure of the scheme to comply with Strategic Environmental Assessment Directive 2001 (SEAD).
(ii) Failure of the scheme to comply with Environmental Impact Assessment Directive (EIAD).
(iii) Flawed consultation. (iv) Other issues.
The appeals on consultation all failed at first instance and in the Court of Appeal. However, in a minority judgment, Sullivan LJ considered the SEAD issue was made out and on that issue the case went to the Supreme Court in October.
Consultation as dealt with in the HS2 litigation: this was a case where voluntary general public consultation was undertaken, giving rise to a duty to carry it out
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thoroughly and fairly. The issue as defined by the court was whether it was so unfair as to be unlawful.
(a) Buckinghamshire argued that it was unfair to the Y network residents to consult on the whole principle of HS2 because the detailed route of the line north of Birmingham was not known. On this issue they failed before Ouseley J and in the Court of Appeal, the Court of Appeal holding that a decision in favour of the X section of the route did not make Y inevitable.
(b) Failure to consider an 'Optimised Alternative': the argument for Bucks County Council was that SST had taken into account an internal report of Network Rail which the objectors had no opportunity to comment on. The court concluded in this instance that it was not necessary for the 51M group to have an opportunity to comment on this report before they reached a decision. The report comprised part of the collective knowledge of advisers to the Minister. In any event this was not a concrete decision to proceed with a concrete proposal, but was a matter for Parliament. This decision merely decided the general principle.
(c) Failure to take properly into account the Heathrow hub proposal. On this issue the Court of Appeal concluded on the facts that there had been no such failure. (d) The Aylesbury case, which did not proceed to the Court of Appeal:
Aylesbury argued:
(i) that their alternative route had not been conscientiously considered, (ii) that at a preliminary stage HS2 had moved the line 100 metres to
accommodate the National Trust but at the expense of the Aylesbury Park Golf Club.
On the issue of conscientious consideration, the government was required to submit supplementary evidence during the hearing and ultimately Ouseley J held that the evidence was, although unsatisfactory, sufficient.
Other recent cases on consultation:
R (Dudley Metropolitan Borough Council) v SSCLG [2012] EWHC 1729 (Admin). This case concerned the alleged failure of the Secretary of State to consult properly over a proposal to reduce grants under the PFI scheme. Dudley Metropolitan Council was directly affected. The court held that a legitimate
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expectation of consultation could arise from a promise of consultation or a past practice of consultation. If a decision directly affected a person's rights, a duty to act fairly would be required by public law and would be implied into the statutory scheme. Here the change in policy affected a class of persons enjoying the benefit or advantage under previous policy and a duty to consult would be implied.
R (Luton Borough Council) v Secretary of State for Education [2011] EWHC 217 (Admin). DfE launched a national programme of school building. A change of policy took place following the election. The court held on these facts that there was nothing to give rise to a substantive legitimate expectation that any project would definitely proceed.
David Fletcher © 6th December 2013
[email protected] St John’s Chambers
