'Streamlining' Judicial Review - The Independent Review of Administrative Law

On July 31^st 2020, the Government launched an independent review of UK administrative law (‘the Independent Review’), more specifically of judicial review (JR), to be conducted by an expert panel of lawyers and academics.[1] According to the Ministry of Justice press release, the remit of the panel is to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government’.

This article will show in Part I that although this initial statement is ostensibly neutral as to the direction in which this balance might need to be shifted, the panel’s Terms of Reference[2] tell a different story: they embrace further reductions of access rather than claimant-friendly reforms. Part II will outline how this continues recent governments’ deliberate restriction of JR’s availability and effect, with a particular focus on the changes made by the Criminal Justice and Courts Act 2015 (CJCA). Part III will discuss the further implications for JR of the slashing of the legal aid budget through the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and subsequent regulations. It will be argued that in light of these restrictions, the panel should be wary of the idea that there is a need to ‘streamline’ judicial review any further.  Rather, it will be shown that the developments outlined have already pushed judicial review out of the reach of the vast majority of the public, and it will be concluded that, far from warranting further cuts, the system desperately needs greater funding. My hope is that the Independent Review panel will consider these points and reach the same conclusion.

I. THE PANEL’S TERMS OF REFERENCE

As Mark Elliott has already highlighted in a recent blog post,[3] the panel’s Terms ‘contemplat[e] a radical suite of changes’ to judicial review. Furthermore, they focus overwhelmingly on questions of (non-)justiciability and efficiency, which are matters close to the Government’s heart and high on its agenda. Of particular interest is Paragraph 4, which asks: ‘Whether procedural reforms to judicial review are necessary, in general to “streamline the process”’. This idea of ‘streamlining’ judicial review highlights the pro-Government nature of the Terms; it anticipates discussion of ways to cut costs and reduce the accessibility of meaningful relief. The paragraph picks out the following elements of JR law for particular discussion:

(a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.

Notice the focus on protecting the Government’s interests in (a) and (b), and the emphasis on “reforming” those areas which are already recognised as impediments to access to JR, such as time limits and standing.

It might be argued that the selection of these noted barriers to access to JR suggests that the Panel’s Terms are intended to embrace improving, rather than reducing access. However, I think that this would be an unrealistically optimistic approach for several reasons of which the review panel must be acutely aware. According to the press release, the launch of the Independent Review ‘delivers on a 2019 manifesto commitment to ensure the judicial review process is not open to abuse and delay’;[4] clearly a pro-Government position. Furthermore, successive governments in recent years have, as Elliott notes, ‘found judicial review to be an irritant, an inconvenience and sometimes a major obstacle to their agenda’.[5] The present Government is therefore unlikely to be receptive to changes which will strengthen JR. On top of engaging in public media attacks on JR,[6] recent governments have taken a variety of steps to deliberately restrict its availability and effect. The following sections will discuss these steps, beginning with the Criminal Justice and Courts Act 2015, which has reduced both the availability of remedies in JR and the financial viability of making a claim.

II. THE CRIMINAL JUSTICE AND COURTS ACT 2015

Over the last ten years, Conservative governments have been vocal about their desire to ‘crack down’ on judicial review. Their frequent media attacks on judicial review have been accompanied by a series of measures intended to restrict its availability, for example the raising of court fees. However, perhaps the most important restrictions which specifically target judicial review are those contained within Part 4 of the CJCA, which significantly impacts the functioning of the JR system in two main ways through sections 84 and 88.

Firstly, s 84 provides that the High Court must refuse to grant relief on a judicial review application ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.’ This question may also be considered at the permission stage, and indeed must be considered if the defendant so requests. Again, ‘if…it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different’, permission for review must be denied. This has financial consequences for the claimant, as will be discussed in the next section. There is provision for an exception to be made to these requirements if ‘it is appropriate to do so for reasons of public interest’; however, beyond this, the effect of s 84 is that it requires the court to refuse relief even knowing that a public body has behaved unlawfully. If the individual claimant would not have been treated any differently under a properly made decision, an unlawful decision is allowed to stand – the message to the public body is that it can get away with disregarding the law.

Secondly, s 88 of the CJCA, which concerns the availability of costs capping orders (CCOs), significantly restricts the circumstances in which costs protection is available to JR claimants. The purpose of CCOs is to limit a claimant’s liability to pay their opponent’s costs in the event that they lose. Such limitation is necessary because the ordinary English costs rule, requiring the loser to pay the winner’s costs, applies in judicial review just as in private law, despite the fact that the defendant here (the State) will invariably have the deeper pockets, and furthermore that JR claimants cannot get damages, meaning that they must pay all costs out of their own funds. In a 2019 Consultation paper, the Government cited the availability of CCOs as a key basis for its statement that ‘we do not consider there to be an access to justice issue’ in respect of JR cases falling outside the Aarhus costs protection regime, which will be  discussed in Part III.[7] However, s 88 places three major limitations on the availability of CCOs which mean that they are far less helpful in practice than on paper.

The first limitation is found in s 88(6)(a): ‘the court may make a costs capping order only if it is satisfied that the proceedings are public interest proceedings’. In order to qualify as public interest proceedings, the case must satisfy the three conditions set down in s 88(7): ‘an issue that is the subject of the proceedings is of general public importance’; ‘the public interest requires the issue be resolved’; and ‘the proceedings are likely to provide an appropriate means of resolving it’. This reduces the likelihood that an individual grievance against the state, one without a broader public interest dimension, will qualify for costs capping, despite the fact that it is individual claimants who are most in need of such protection.

Secondly, the availability of CCOs hinges on whether the court is satisfied that one being granted, the claimant would withdraw their JR application (s 88(6)(b)). Furthermore, the court must find that it would be reasonable for the claimant to do so. This invites the court to engage in the kind of evaluation of claimants’ spending habits that occurred in the UNISON case concerning tribunal fees.[8] This case saw counsel for the Government not only disputing the minimum income standards set out by the Joseph Rowntree Foundation, a charity specifically working to combat poverty, but also arguing that it would be reasonable for a would-be claimant to ‘sacrifice all spending’ on ‘clothing…personal goods and services…social and cultural participation…or alcohol’ for 2-4 months in order to afford access to court.[9] These arguments were rejected by the Supreme Court, but the fact that they were made at all offers an insight into governmental attitudes to access to justice: it is not regarded as something available as of right, but as a privilege for which individuals must pay dearly.

Finally, s 88(3) provides that a CCO may not be made unless the claim has passed the permission stage, meaning that up to that point, claimants must take a significant financial risk in pursuing the case. This rule is also heavily weighted against claimants: as the Public Law Project noted in its response to the 2019 FRC Consultation Paper, judicial review applications require claimants to ‘frontload’ their work: ‘by the time the permission application is considered, claimants will have filed the evidence on which they wish to rely, as well as detailed grounds of claim, statutory and policy materials relied on and a bundle containing all relevant documents.’[10] This means that claimants will incur the bulk of their costs prior to the permission stage, whereas the defendant public authority hardly has to do anything up to this point. The connotations of the idea of ‘streamlining’ judicial review – the suggestion that reform of JR is needed in order to introduce further deterrents for unworthy claimants – seems laughable in light of these limitations. Making a judicial review claim is already a risk that most people cannot take at all, let alone take lightly.

III. THE IMPACT OF LEGAL AID CUTS ON JUDICIAL REVIEW

The inadequacy of the costs protection regime is unfortunately not the only financial obstacle to access to JR. It has been argued, and I agree, that the ‘most important issue in public law’,[11] is the unaffordability of judicial review for the majority of the UK population. The cost of judicial review has become a serious impediment to access to justice, partly due to general budget cuts across the UK legal system, and partly due to cost-cutting measures which have explicitly targeted judicial review. Throughout the Independent Review, the panel must remember the harmful impact that these cuts have already had, and recognise the need for greater funding, not lesser.

The first step in this process was the passage of the LASPO Act 2012, which substantially reduced the subject matters which remain within the scope of legal aid. The Act was swiftly followed by the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, setting out a new, more stringent, means test for legal aid eligibility which cuts off access to funding for all but the poorest members of society. Members of the middle classes, or those termed the ‘just-about-managings’, do not qualify for legal aid despite being realistically unable to afford a judicial review claim from their own money. As Tom Hickman helpfully illustrates:

‘people who have £169.15 or more per week for themselves and their family to live off, or who have any significant assets, do not qualify for legal aid. To put this in perspective, £165 is the rate for a single hour of a solicitor’s time of a Grade C fee earner in a London Grade 3 (outer London) solicitors firm.’

Furthermore, the cuts to legal aid rates for lawyers have made it more difficult for would-be claimants who do qualify for funding to find someone who can afford to represent them: for many it is simply no longer viable to maintain a practice at legal aid rates.[12] This problem has been exacerbated in JR by the introduction of the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015,[13] which specifically target the availability of legal aid in judicial review. The main effect of these Regulations is that the work a solicitor does on a judicial review application may no longer be paid unless permission to bring a claim is granted (or in a range of other scenarios). In the light of the earlier discussion on the ‘frontloading’ nature of judicial review claims, it is clear that the natural effect of this change is that solicitors who are still willing to do legal aid work are forced to take the risk of a substantial amount of work going unpaid. The limitations on access to CCOs, as already discussed, also worsen the situation further, as does the fact that success fees are no longer recoverable from defendants in civil claims, meaning that conditional fee agreements (CFAs) have become unsuitable for use in judicial review cases.

Attempts to address this problem have been unsuccessful, although they have been advocated in both of Jackson LJ’s recent reports on civil litigation costs. The 2010 Report recommended the introduction of a system of Qualified One-Way Costs Shifting (QOCS) in JR, which would mean that while the government defendant would pay the claimant’s costs if it lost, the claimant would never be liable to pay any costs beyond ‘the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances’.[14]

However, in 2017, although Jackson LJ and many contributors to the review still believed that this was the best approach, he wrote that it was not ‘realistic’[15] to hope that the Government would agree. He consequently argued that the next best thing would be to extend the costs protection regime currently available in certain environmental JRs, known as the Aarhus Rules,[16] to all types of judicial review. The Aarhus Rules were introduced when the UK was found to be in violation of Article 9 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention), paragraph 4 of which requires that access to environmental justice must not be ‘prohibitively expensive’.[17] The rules allow the claimant’s adverse costs liability to be capped at £5,000 (or £10,000 for business claimants).

There are two problems with the Aarhus Rules. Firstly, the limitation is not a particularly helpful form of protection, given that £5,000 is still a significant amount of money for the vast majority of individuals to pay.[18] Secondly, the introduction of the Aarhus Rules as a separate costs regime, limited to environmental cases, implied that as far as the government was concerned, it was perfectly acceptable for all other types of judicial review to be ‘prohibitively expensive’. In other words, it indicates that access to meaningful administrative justice for ordinary people is not treated as a priority. As Jackson LJ has repeatedly argued, there is no principled reason why the rules on costs should differ according to whether or not a claim falls within the Aarhus Convention. Upon receiving the 2017 report, however, the Government issued a Consultation Paper in response[19] in which it flatly refused to consider extending the Aarhus Rules beyond their current scope, with little evidence to support its assertion that there is no access to justice problem in non-Aarhus JR cases.

Discussion of the costs of administrative justice, despite its overwhelming practical significance, is often overlooked in academic legal study, relegated to a footnote in the public law textbooks. I urge the Independent Review panel not to make the same mistake, but rather to recognise that for many people, practical and financial concerns pose the greatest impediment to access to justice.

IV. CONCLUSION

As the Independent Review panel begins its work, the panellists must remember that this is not the first time that judicial review procedures have been considered by the Government to be in need of ‘streamlining’. Furthermore, recent attempts at reform have reduced access through both doctrinal changes and practical limitations, effectively cutting it off altogether for much of the population. Further cuts would be even more devastating, as well as particularly harmful to the most vulnerable in our society. The panel should also remember that the impact of austerity measures has been far wider, with public service budgets being slashed across the board. This not only reduces the likelihood of individuals’ abilities to afford judicial review, but also itself generates grounds for judicial review claims. The irony of austerity is that it has created a greater pressure for the procedures it claims we can no longer afford – it denies justice at a time when we need it more than ever.