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Time to Find an Appropriate Balance With Judicial Review

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Many backbench Conservative members of Parliament are feeling somewhat scratchy.

They are frustrated that all too often they are told by ministers that ministers are unable to do or not do something as a consequence either of

• Europe; or
• The judges and the courts; or
• Particularly human rights legislation;
• The coalition agreement.

So it is not surprising that ministers are keen to score some runs in increasing their ability to take a decision.

On Thursday, Chris Grayling, the secretary of state for justice, issued a written ministerial statement on judicial review.

This appears not to have been particularly picked up by the press.

At first sight, it is a written statement drawing attention to a proposed set of reforms for judicial review. On the face of it, they all look perfectly sensible measures to make the judicial review process work more effectively or, as the written statements says "... a targeted approach to ensure that legitimate claims are brought more quickly and efficiently to a resolution without affecting the rights to properly hold the Executive and other public bodies to account."

However, a press release issued alongside the written ministerial statement would seem to indicate that Chris Grayling and the government are wanting to go much further in rebalancing who it is that actually takes decisions in this country - is it ministers or the judges?

In his press statement, Chris Grayling says: "We have seen a huge surge in judicial review cases in recent years. The system is becoming mired in large numbers of applications, many of which are weak or ill founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them.

I am concerned that judicial review is being used increasingly by organisations for PR purposes. Often the mere process of starting a judicial review will generate a headline.

We want to go back to a planning system where judicial review is available for genuine claims which provides people with access to judicial review where they need it, but weeds out the cases that should, frankly, never be there in the first place".

The fact is that judicial review applications have grown exponentially in recent years.

Judicial review, or rather, concerns about whether one might be taken to judicial review, are taking up more and more of ministers' and officials' time.

At a conference this week on judicial review, one government department was represented by no fewer than a staggering 16 officials and lawyers, all concerned with an annual update on what is happening in law and procedure on judicial review and at the same conference, there were 18 lawyers present from the Treasury Solicitors Department.

What the secretary of state for justice is proposing is a number of changes to try and ensure that the judicial review process cannot be unnecessarily dragged out.

So, for example, for cases based on a continuing issue or multiple decisions, the court should clarify the point when the time limit starts, to avoid long delays and for planning cases reducing the time after the initial decision that an application for judicial review can be lodged from three months, to six weeks to match the time limit for planning appeals.

However, the secretary of state's statement seems to suggest that he would like a rather more radical reform and shake-up of the whole JR process.

There is an important public debate to be had here, much broader and more fundamental than is suggested by a comparatively short written ministerial statement on a Thursday.

To what extent should political and administrative decisions be taken by ministers, and to what extent should they be taken by the courts?

Various factors, such as ever-widening boundaries of human rights legislation, and the introduction of the Supreme Court have inclined judges to be increasingly adventurous in deciding JR decisions.

The uncertainty of what can happen in JR proceedings, and the uncertainty as to the length of JR proceedings, can have a considerably dampening effect on ministers' and others' willingness to take initiatives and to take decisions.

On the other hand, over the years, JR has been seen as becoming an increasingly important counterbalance to preventing the executive from simply riding roughshod.

Even failed JR applications can often have a valuable role in preventing ministers taking bad decisions.

During the time of the last government, ministers came up with a proposal to build a huge asylum accommodation centre outside Bicester in my constituency for thousands and thousands of asylum seeker families.

This proposal was not surprisingly resisted by the local commniiteis and by local councils.

They took the case to judicial review.

As it happened, they lost.

However, the delay gave the Treasury time to get to grips with situation and in due course the Treasury stopped the project - not before the last Labour government had spent some £25 million on it, notwithstanding that a single stone had not been laid on the side.

I am confident that if it hadn't been for the JR proceedings delaying matters, at the outset, when ministers wanting to take the asylum accommodation centre project forward as a matter of urgency, they would have built the thing overnight.

It was only some time later that the National Audit Office (NAO) were able, at my request, to undertake a review, which demonstrated that at no point in time had the project been in any good value for money and was never going to work.

The NAO seriously criticised the Home Office and Home Office Ministers.

Of course, by then, such is the way of the world, that the ministers who had taken the decision and the permanent secretary who had been the accounting officer at the time when such a significant loss in public finances had been incurred, had all moved on.

At the present moment a large number of local authorities have come together to take JR proceedings against the government on a number of grounds in respect of the HS2 project, including the important grounds that there hasn't been a proper environmental impact assessment done, and that the proposals in respect of any compensation are flawed.

The High Court has now heard the competing arguments and will give judgement probably next February or March.

It surely must be an important check and balance that local authorities, either individually or collectively, are able to get some independent judicial oversight of decisions taken by ministers that can and will affect local people.

On the other hand, the undoubted massive increase in JR cases relating to all sorts of areas such as immigration, environmental protection, etc. are clearly unsustainable.

There is real danger that good JR cases get delayed and obstructed because there are so many JR cases in the system, many, as the minister points out, simply there for PR benefit and point-scoring.

What I suggest is needed here is not a consultation on a limited and technical set of reforms to judicial review, but rather, a more widespread debate in Parliament and society more generally as to where is the appropriate balance to be drawn between Judicial Review being a proper and legitimate means of holding the executive to account, and where does it become a mechanism simply for seeking to frustrate and thwart decisions taken by ministers with which one happens to disagree.

This is an important issue and requires a proper and informed public debate.