The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
I will today lay and publish the paper “Judicial Review: further proposals for reform” (Cm 8703) which seeks views on potential areas for the reform of judicial review and related issues, including legal aid.
Reforming judicial review is an important part of the Government’s programme to tackle public burdens, promote growth and stimulate economic recovery. I am clear that judicial review is, and will remain, an important means to hold Government to account where it is acting unlawfully, but I remain concerned that too often it is being used either as a campaign tool or to delay or frustrate decisions that have been properly made. I am also concerned that legal aid resources should be targeted at those judicial review cases where they are needed most if the legal aid system is to command public confidence and credibility.
A number of reforms have already been made to the procedural aspects of judicial review, including removing the right to an oral renewal in a case certified by the judge as “totally without merit” and aligning the time limits for bringing a planning or procurement judicial review with the relevant statutory challenges. A new fee will soon be introduced for an oral renewal. While these reforms are a worthwhile first step, it is right that we test the potential for further substantive reform.
To that end, the paper makes proposals in a number of areas: the courts’ approach to cases which rely on minor procedural defects; rebalancing financial incentives; speeding up appeals to the Supreme Court in a small number of nationally significant cases, which would extend beyond judicial review; and planning challenges. I also think it makes sense to explore the potential for reforming the test as to who can bring a judicial review, as well as whether there are mechanisms other than judicial review for resolving disputes related to the public sector equality duty, following a recommendation by the Public Sector Equalities Steering Group.
Having listened to concerns raised in the Transforming Legal Aid consultation, which closed in June, this package also includes a proposal in relation to the payment of legal aid providers in judicial review cases. In addition to our original proposal that providers would only be guaranteed payment for their work on a judicial review where permission is granted by the Court, this consultation proposes that the Legal Aid Agency will have a discretion to pay providers in certain genuinely meritorious cases where the provider has been unable to secure a costs order or costs agreement as part of a settlement.
The proposals I am publishing today are intended to deliver a much needed rebalancing of judicial review so that it operates in a more proportionate manner without undermining how Government are held to account, allowing scarce taxpayer-funded resources to be focused where they should be. The consultation will close on 1 November, and all responses will be considered carefully before I respond.