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Judicial Review Consultation Ministry of Justice 4th Floor Postal Point 4.38 102 Petty France London SW1H 9AJ
29 October 2013
Dear Madam, or Sir JUDICIAL REVIEW—PROPOSALS FOR FURTHER REFORM RESPONSE BY THE RAMBLERS’ ASSOCIATION This response is on behalf of the 115,000-strong Ramblers’ Association (‘the Ramblers’), who are grateful for this opportunity to make the following representations. Introduction The Ramblers 1.
The Ramblers is a registered charity which seeks (among other things) to promote walking, both as a recreation and as the most sustainable form of transport. We also seek to promote the health, recreation and environmental benefits of walking, especially by protecting and extending the network of public paths and access in town and countryside, through lobbying, campaigning and voluntary practical work, and, since April 2012, through our partnership with Macmillan Cancer Support, in which we run the Walking for Health project, delivering strategic guidance for the England-wide health walks programme and providing schemes with such support and free resources as training, insurance, and national promotion. (The local schemes are run by a variety of organisations including councils, the NHS, charities and voluntary groups.)
In addition to supporting Walking for Health walks, we organise 45,000 led walks per year. 12,000 volunteers lead the walks; about 300,000 people take part in them. We have been organising these led walks since our formation in 1935.
Our involvement in judicial review 3.
In our work, at any rate over the past 35 years, we have occasionally had recourse to action in the higher courts. Most often this is by way of a statutory challenge1 of, for example, a decision by a planning Inspector, acting on behalf of the Secretary of State,2 on the basis that she or he misdirected herself or himself as to the law, when determining a public path order or a definitive map modification order. This statutory challenge is available when an Inspector confirms an order and has misapplied the law, or when an order is confirmed but there has been a procedural irregularity at some stage in the due process.
But sometimes there is no statutory right of challenge. That is so where an Inspector through self-misdirection declines to confirm an order of the sort mentioned in the previous paragraph, or where an order is not confirmed and there has been a procedural irregularity. The only option is judicial review of the Secretary of State’s (i.e., the Inspector’s) decision. It is this kind of thing that has led to much of our involvement in judicial review.
So in order to set right a misapplication of the law, even in the case of an isolated local matter, it is sometimes necessary to have recourse to judicial review.
The ‘Godmanchester’ case in the House of Lords 6.
It was in such a circumstance that by way of judicial review the Ramblers brought the cases of R (on the application of Dr Leslie Ernest Drain) v Secretary of State for the Environment, Food and Rural Affairs and R (on the application of Godmanchester Town Council v Secretary of State for the Environment, Food and Rural Affairs  UKHL 28. This was not to challenge the Government. It was nothing to do with the Government: it was to correct a piece of judge-made law, and so to reassert, not undermine, the will of Parliament. It concerned the application of the proviso in section 31(1) of the Highways Act 1980. The section is the measure by which through 20 years’ public use3 of a way, the way becomes a public right of way; the case was about what a landowner needs to do to prevent this occurring. As a result of two decisions, by judges in ex parte Billson4 (1998) and ex parte Dorset5 (1999), the provision had been rendered virtually a dead letter: it had made it technically possible for a landowner to
E.g., under Paragraph 5 of Schedule 6 to the Highways Act 1980 (diversion, extinguishment, etc of public rights of way), or under Paragraph 12 of Schedule 15 to the Wildlife and Countryside Act 1981 (concerning modification orders made to public rights of way on the definitive map and statement). 2 Usually the Secretary of State for the Environment, Food and Rural Affairs. 3 More accurately, “Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.” The judicial review was about the underlined words. 1
R v Secretary of State for the Environment, ex parte Billson  3 WLR 1240. R v Secretary of State for the Environment, Transport and the Regions ex parte Dorset County Council  EWHC Admin 582. 4 5
defeat a claim for a right of way by the mere post-hoc assertion that it had not been her or his intention to dedicate the way as public, when previously the position had been that it was necessary to communicate the lack of intention (by notices, challenges, etc6) to users of the way during the qualifying period of use. The intention behind the legislation (which derives from the Rights of Way Act 1932) was to remove the arbitrary and illogical7 rules which exist at common law for the dedication of rights of way, and generally to make it easier8 for the public to acquire rights. But by ruling in this way, the judges in ex parte Billson and ex parte Dorset effectively reversed that position, making a claim under common law rules more likely to succeed than under the legislation which was enacted to address their arbitrariness and illogicality. 7.
It was to remedy that situation that the Ramblers pursued the case. The House of Lords unanimously agreed with us on the point, with Lord Hoffmann stating9 that the interpretation of the law in the courts below “would make nonsense of the Act”. So, as Mr David Braham QC, writing in the Rights of Way Law Review has since put it, “section 31 is now back in full working order”.10
We trust that it will be accepted that we brought this judicial review action not to “wrong-foot” a duly-made ministerial decision or to derail some major infrastructure project of the Government’s or to obtain publicity. It was done to correct an injustice and to reassert, not frustrate, the intention of Parliament. All civilized legal systems have rules which respect activities which have been carried on for a long time, and this matter was about one such rule which the courts had misapplied (and, consequently, Inspectors at public inquiries into these matters were misapplying). It is unfortunate when the law thus goes astray; it is fortunate that there is a means of addressing it when it does. Curtailment of judicial review by bodies concerned with certain aspects of the law—as the Ramblers are, with its application to public rights of way—could prevent the rectification of such injustices.
The Ramblers’ judicial review of a decision by the Secretary of State for Defence 9.
Another case in which we brought judicial review was Ramblers’ Association v Secretary of State for Defence  EWHC 1398 (Admin). Lest the reader suppose that this was some defiantly anarchic onslaught on a great Department of State, we hasten to add that it concerned a public footpath in rural Suffolk, at Mildenhall, which goes along the edge of an airfield currently used by American forces. For the security of the occupants of the airfield, the Secretary of State sought, and the Ramblers did not oppose, the closure of the path. But the authorities chose a procedure which would extinguish the path in perpetuity, without regard to the possibility of the land being
Or by using certain other measures mentioned in the section. Lord Hoffmann in Godmanchester and Drain, paragraph 37. 8 Lord Hoffmann in R v Oxfordshire County Council ex parte Sunningwell Parish Council  1 AC 335. 9 Lord Hoffmann in Godmanchester and Drain, paragraph 31. 10 David Braham QC, “Godmanchester in the House of Lords”, Rights of Way Law Review, July 2007, section 6.3.109, 115. 6 7
sometime put to other use when (but for this proposal) the use of the right of way could be resumed. We asked that the Secretary of State make a temporary order under section 22C11 of the Road Traffic Regulation Act 1984; but instead an order was made under section 16 of the Defence Act 1842, a measure against which (unlike with the extinguishment of a highway under any other legislation) there is no statutory process for objection, except for judicial review. 10.
Hence, our judicial review. Since the 1842 Act requires there to be provided a convenient replacement route,12 and here none was so provided, Sullivan J agreed with the Ramblers that the decision to make the order should be quashed. Subsequent negotiation with the (very helpful) staff at the Ministry of Defence has resulted in a compromise involving our preferred measure.
The Ramblers’ judicial review of a decision by the Secretary of State for Wales 11.
In the 1990s our member Mr Gordon Emery applied13 for a well-used path to be recognised as a right of way through its addition to the definitive map and statement. Despite more than 100 statements by persons testifying to their use of the route, the surveying authority (Clwyd County Council) rejected the application on the footing that a prima facie case was ousted by credible assertion by the landowner that there was no intention to dedicate. Mr Emery appealed14 to the Secretary of State who also rejected the application. Believing this to be a misapplication of the law—in our view, the credibility of evidence for and against the recognition of a right of way was a matter for testing at public inquiry rather than for summary dismissal by the County Council or Secretary of State—the Ramblers sought judicial review in Mr Emery’s name. The result was that the Court of Appeal, in R v Secretary of State for Wales ex parte Emery  4 All ER 367, upheld our argument, thus clearly defining15 an aspect of the procedural provisions which in our experience had previously been applied or misapplied in various arbitrary ways by different surveying authorities.
Inserted into the Act by the Civil Contingencies Act 2004 Schedule 2 Paragraph 16 to deal with this very type of situation. 12 Section 17. 13 Under section 53(5) of the Wildlife and Countryside Act 1981. 14 Under Paragraph 4(1) of Schedule 14 to the Wildlife and Countryside Act 1981. 15 Roch LJ said that “... where the applicant for a modification order produces credible evidence of actual enjoyment of a way as a public right of way over a full period of twenty years, and there is a conflict of apparently credible evidence in relation to one of the other issues which arises under s 31, then the allegation that the right of way subsists is reasonable and the Secretary of State should so find, unless there is documentary evidence which must inevitably defeat the claim either for example by establishing incontrovertibly that the landowner had no intention to dedicate or that the way was of such a character that use of it by the public could not give rise at common law to any presumption of dedication.” The result is now that an order is made; and the landowner (or any person) may object, when the testimonies of all parties, for and against, are tested in cross-examination. This is a far more just process than what had sometimes occurred previously, when which witnesses were credible or not was treated as a matter for the individual member of council-staff handling an application. 11
From this it will be seen that it was to clarify the confused application of the law that we brought the action. It was not to undermine the decision of a duly-elected legislature.
The Sunningwell case in the House of Lords 13.
Though we were connected with it only indirectly, we would like to mention this other matter of which we are well aware as an example of use of judicial review to set right an error of judge-made law as opposed to a decision by Parliament or an order of a minister. It concerned the definition of the term “as of right”. For it to acquire villagegreen status, a piece of land must be used as of right by local inhabitants for 20 years; for it to become a public right of way through inferred dedication at common law or through 20 years’ use under statute, a way must be used by the public as of right. The term “as of right” was (we believe) first used as a statutory term in the Prescription Act of 1832, but has its origins in Roman law, and for many centuries was taken to mean no more and no less than nec vi, nec clam and nec precario: without force, without stealth and without permission. That is how the ancient authorities treated it: Bracton, Littleton, in Tenures, Coke, and Blackstone. But in Hue v Whitely  1 Ch 440, Tomlin J, in a case about a footpath on Box Hill, Dorking, conjured out of thin air the additional requirement that users must believe they are exercising a right. The fallaciousness of this is surely obvious (for a start, the 20-year period of use required under section 31(1) of the Highways Act 1980 could never begin if the users had to believe they were exercising a right, since if they think about it at all they will know that are doing nothing of the sort); but this did not stop a succession of judges16 from adopting and in some cases embellishing the error for the remainder of the 20th Century. Thus was the law misapplied by many an inquiry and court as a result of this remark by Tomlin J in which without explanation he adopted a meaning for the expression at odds with the law as established down the centuries in cases of the highest authority. Even Halsbury defined17 “as of right” by reference to Tomlin J’s dictum.
It was judicial review of an Inspector’s decision by a parish council in a village-green matter which eventually set this right—R v Oxfordshire County Council ex parte Sunningwell Parish Council  1 AC 335. Lord Hoffmann (the rest of the House agreeing) held that “To require an inquiry into the subjective state of mind of the users would be contrary to the whole English theory of prescription.” As a result, affirmants of private or public rights of way or of village green status have been relieved of the
Among them were: Farwell J in Jones v Bates  2 All ER 237, Harman J in Alfred F Beckett Ltd v Lyons  1 All ER 833, Sedley J in R v Secretary of State for the Environment ex parte Perko (unreported, 11 May 1994), Staughton LJ in R v Secretary of State for the Environment ex parte Cowell  JPL 851, Pill J in O’Keefe v Secretary of State for the Environment and Isle of Wight County Council  EWCA Civ 2219, Brooke J in R v Secretary of State for the Environment and Herefordshire County Council ex parte Badman (1996) JPL B107, Pill LJ in R v Suffolk County Council ex parte Steed (1995) 75 P & CR 102, Laws J in Jaques v Secretary of State for the Environment  JPL 1031, Latham J in R v Secretary of State for the Environment ex parte North Yorkshire County Council  JPL B101. 17 Volume 21, paragraph 76. 16
onerous burden of proving the unlikely “fact” that users during the qualifying period believed or had deluded themselves into believing that their use was in the exercise of a right. Our concerns about the proposals 15.
We are deeply concerned about the potential impact of the government’s proposed reforms to judicial review on the ability of individuals and organisations to hold public decision-makers to account and to prevent abuse, misuse and mistaken use of power. We believe that there are significant constitutional repercussions to the proposed reforms, and urge the Government to rethink their approach. If it be true (and we think that we have shown below that this seldom or never the case) that organisations are using judicial review purely as a means of “wrong-footing” duly-made ministerial decisions or of derailing the Government’s major infrastructure projects or of obtaining publicity, it is unfortunate and may be deplorable. But the misuse of a thing, if there is any misuse, is no argument against its proper use.
There are certain elements of the consultation which do not affect us as a voluntary sector organization, or on which we are not qualified to comment (for example, the issues covered in Q1–Q8 of the proposals). We have not responded to those sections.
Our specific concerns are addressed below.
The proposals stem from a mistaken premise 18.
Various parts of these proposals give rise to a concern that the basis for the reforms is unsound. (a)
“the use of judicial review has expanded massively in recent years”; “there has been significant growth in the use of judicial review”.
The Government’s own figures, included in the chart on page 8 of the proposals, shows that this assertion is unsustainable. The number of applications for judicial review in criminal cases was virtually static between 2007 and 2012 and there has been a negligible increase in the number of applications for permission for judicial review in civil cases. 19.
There has been a significant increase in the number of applications for permission for judicial review in asylum and immigration matters but, as recognised by the Government in the introduction to these proposals, immigration and asylum cases are soon to be redirected to the Upper Tribunal instead of the Administrative Court. Therefore the only cases relevant to the proposed reforms are the non-asylum and immigration matters, which have not increased in volume. There has been no significant growth or massive expansion in judicial review that could justify these reforms.
(b) “unmeritorious cases which may be brought simply to generate publicity … judicial reviews are brought by groups who seek nothing more than cheap headlines”. 20. There is no evidence that judicial review is being misused by campaigning groups for publicity purposes. Excluding immigration, asylum and planning cases (on the basis that they are to be dealt with by alternative Tribunals), there were approximately 2300 judicial reviews brought in 2011. Of these, around 50 were brought by voluntary sector organisations, representing only 2% of all judicial reviews. It cannot be concluded from these numbers that such groups are placing an undue burden on the court system. Furthermore, judicial reviews brought by voluntary organisations are disproportionately successful, disproving any assertion that they are misusing judicial review as a means of generating headlines or publicity. 21.
For the Ramblers’ part, we say at once that the very last means of generating publicity we would choose would be an action in judicial review. Over the past 75 years we have used rallies, our magazine, and the press and other media for that purpose, and occasional “stunts”. None of these involves anything like the financial outlay connected with litigation. It is that, and the risk of massive costs on losing, which keeps us well out of the courts except as an absolute last resort. We can think of many other lawful and potential “headline-grabbing” activities which would have that purpose. Secondly, “headline-grabbing” is seldom an accurate description of the issues over which we venture into the courts. We mentioned Godmanchester, above. It was a significant result, but we well remember the nightmare of trying to write the press-release. If those who claim that judicial review is used for publicity could have told us at the time how to sell to the papers a story about the effect of the proviso in section 31(1) of the Highways Act 1980, we would have been in their debt to this day. Likewise in Emery: a court case about the meaning of the words “reasonable allegation” in section 53(3)(c)(i) of the Wildlife and Countryside Act 1981 would, we submit, have been unlikely to interest many newsdesks. It seems to be ever thus, with the kinds of things over which we find ourselves in the courts: important matters, but dry and probably deadly dull to 95% of the population.
We do not wish to make any extravagant claims about our own importance, but would mention that at least once a judge has acknowledged that our legal actions are in the public interest. In Ramblers’ Association v Kent County Council  JPL 530, Woolf LJ (later Lord Chief Justice of England and Wales) observed that “in a case of this nature, the Ramblers’ Association are in effect representing the public, and they are doing no more than trying to ensure that all the considerations are before the justices, and are performing, so to speak, a public service.”18 Indeed, the courts, in being prepared to allow us to be joined in judicial review proceedings, have on other occasions recognised our particular concern with the law and its correct application: for example
For accuracy we should say that this particular case was not by way of judicial review but was an appeal by case stated by the justices for the county of Kent. It is nonetheless the sort of issue about which we have brought judicial review where no other procedural opportunity is available under statute. (Woolf LJ’s remarks came in the post-judgment exchange between counsel and the court about costs.) 18
in R v Secretary of State for the Environment ex parte Kent County Council  JPL 1120, Turner J observed that “as almost invariably happens in this class of case, the Ramblers’ Association was permitted to appear as having a general interest in the subject matter of this litigation.” That case was about the scope of a surveying authority’s powers under section 53 of the Wildlife and Countryside Act 1981, concerning the deletion from the definitive map of paths known to exist but where the route was not certain: again, this was a matter of law of some importance where our interest lay in its clarification; it was not an attempt by us to delay, frustrate or discourage legitimate executive action; neither was our intervention to “obtain publicity”, since there could scarcely have been drier subject-matter than this with which to appeal to potential supporters. 23.
It is worth noting that political controversy is newsworthy, and a source of controversy may be that there are bona fide legal concerns about a policy. Claiming that judicial reviews are the cause rather than a response to political controversy approaches the issue from the wrong direction. There are various recent examples of controversial areas in which there have been bona fide (i.e., not simply publicity-seeking) legal claims including R (on the application of Friends of the Earth v Secretary of State for Energy and Climate Change  ACD 29, R (on the application of Luton Borough Council) v Secretary of State for Education  EWHC 217, and Burnip v Birmingham City Council  EWCA Civ 629. The publicity that these cases generated was a result of the public maladministration they represented, not a result of the litigation that was brought to correct it. (c) “using court time and public money simply to object to a lawful policy of an elected government … is not acceptable”; “the Government is concerned by the use of unmeritorious applications for judicial review to delay, frustrate or discourage legitimate executive action.”
We are concerned by the implication in these statements that judicial reviews which are ultimately unsuccessful (i.e., it is decided that the decision challenged is lawful) are “not acceptable” or have the intention of frustrating legitimate action. It is of fundamental constitutional importance that there is a means of challenging perceived misuses of power and that the rule of law is upheld, most importantly by the State. There will, obviously, be situations where a challenge is appropriate, but it is ultimately decided that the executive acted lawfully. These examples should not be assumed to be unmeritorious or having been initiated in bad faith. Nor should they be used to justify unwarranted restrictions on access to the judicial review system.
The proposals fail to take into account the purpose and nature of judicial review Standing (Q9 and Q10) 25.
The proposed reforms to standing seem to misunderstand that the purpose of judicial review is to address matters of public interest, not redress private wrongs. Any change to the rule on standing that emphasizes a direct and tangible interest (amounting, on
the proposals as they stand, to a private interest) would distort the focus of judicial review which is and should continue to be publicly-minded and forward-looking. 26. In addition, the proposed changes to the rule on standing fail to account for the fact that there are often no individuals with a direct interest in the outcome who can seek judicial review. The current position allows for appropriate organisations to bring a review in those situations. For example, the organization Medical Justice successfully challenged the UK Border Agency’s policy to deport failed asylum seekers with less than 72 hours notice (R (on the application of Medical Justice) v Secretary of State for the Home Department  EWCA Civ 1710). There were no claimants with a direct interest who could bring these proceedings because, as a result of the unlawful policy, they were no longer in the country. If the rule on standing changed in accordance with the Government’s proposals, there would be no recourse to the courts in situations like this. 27.
As a corollary to this point, we wish to add that because NGOs have diverse and wideranging experience, necessarily far more so than individuals, they are often well placed to judge which matters raise points of most significant public importance, and best merit the scrutiny of the courts. Where individuals see only their own case, NGOs are able to observe patterns of repeated unlawfulness or of repeated misapplication of the law, which collectively can be of genuine public importance. It then takes only one Court ruling to bring an end to the widespread unlawfulness. This phenomenon can be seen in a huge number of areas: housing, social security, and, certainly to our own first-hand experience, public rights of way. The Emery and Godmanchester cases mentioned in this submission and brought by us were respectively to clarify the law and rectify its unjust misapplication. We doubt that many individuals who had suffered injustice in consequence of its misapplication would have had the points reviewed (or even have considered that the law had in fact been misapplied): so that the injustice would have been on-going. We are aware as well that another NGO, the Open Spaces Society, was involved to some extent with the landmark Sunningwell case referred to above.
28. There are also many areas where regulators make decisions in which both regulated businesses and individual citizens have an interest, the OFT (and its successors) being a prime example. Individuals are extremely unlikely to have the appetite and resources to judicially review such decisions, whereas businesses will be quick to bring in specialist legal teams. Without NGOs being able to bring appropriate challenges to such regulatory decisions on behalf of a large number of affected individuals, scrutiny of regulators’ decisions will inevitably become decidedly imbalanced. That outcome would be very much against the wider public interest. 29. It is a basic public good that public bodies can be held to account, and that claimants are treated equally before the law. The Government’s proposals on standing cannot apply to environmental claims, which are governed by the Aarhus Convention. Introduction of the proposals will therefore lead to an unjustifiable discrepancy in
access to justice for claimants on environmental issues and those seeking review of decisions which impact on other important policy areas. 30.
For the reasons above, our response to the relevant questions posed in the consultation are as follows:
Interveners (Q11, Q31, Q32) 31.
The government’s attempt to discourage organisations from intervening in cases by imposing additional cost burdens on interveners also suggests a failure to recognize the public focus of judicial review. Where there are important matters of public policy which go beyond the particular interests of the parties to the claim, interveners bring expertise which assists the court’s consideration of the matter. Far from being a drain on the court’s time and resources, interveners draw attention to the wider implications of a decision and expedite the judge’s decision-making on those issues. The creation of additional costs risks for interveners would discourage their participation in proceedings and reduce the quality of the judgments that result from important judicial reviews. We note that in practice interveners are very rarely awarded costs in their favour (certainly, we have never been) and believe that restricting the court’s ability to decide when costs should, unusually, be awarded is excessive and unnecessary.
The constitutional role of the courts in holding public authorities accountable 32.
Judicial review is the practical expression of the fundamental constitutional tenet that executive organs should be subject to judicial oversight to ensure the lawfulness of their actions.
The reforms that the government proposes represent a significant restriction on the ability of the judiciary to perform this function by removing certain decisions from the remit of the courts (i.e., any decisions in which there are no persons with direct interest who can bring a claim; any decisions where the persons with direct interest do not have the funds to risk costs exposure in the absence of PCOs; any decisions in which there has been a breach of the public sector equality duty, etc). If implemented, this would represent a major rebalancing of the British constitution in favour of the executive, which would have long-lasting consequences on the ability of civil society to prevent and respond to abuses of power.
The lessons of history tell us that mechanisms by which there can be a check on abuse, or misuse, or mistaken use, of power, once removed, are rarely put back. Future governmental regimes are unlikely to want to increase the ability of challenge. A cut into the rights to judicial review would be likely to last for many generations to come.
The judicial review system, and how it contains existing adequate safeguards 35.
The public implications of judicial review are well-recognised and the current system contains extensive safeguards against abuse. Parties to judicial review must engage with a pre-action protocol before proceedings are issued, and it has been our experience that public bodies often reconsider their decision at this stage, removing the need for litigation to continue even where there has been a legitimate challenge.
The Ramblers as recently as last month wrote such a pre-action letter, concerning a decision not to apply the provisions for coastal access19 to the coast of the Isle of Wight. The government accepted our general argument and the decision is now being reviewed: there was no need for recourse to the courts, and the Ramblers have been at pains not to trumpet this reconsidering of the decision as a “victory” or in any way as any sort of “wrong-footing” of the decision-maker. Removing the ability of voluntary sector organisations to bring judicial reviews would remove the concomitant preaction engagement and would result in the persistence of unlawful or mistakenlytaken decisions which are currently rectified at this stage.
In addition, the existing rules for standing and permission provide a safeguard against vexatious claims. The sufficient interest test that is applied ensures that only proper claimants can bring a judicial review, taking into account the intrinsic public element of judicial review. The unique requirement for permission, coupled with the Mount Cook principle that awards a defendant the costs of drafting their acknowledgement of service if the claimant is refused permission, acts as a disincentive to hopeless cases and a proper hurdle for all claimants to cross. The court has ultimate discretion to ensure that claimants who bring entirely unwarranted claims face heavy adverse costs awards for doing so.
In combination, these features of the existing judicial review system represent significant and appropriate safeguards against any abuse of the system. They strike a proper balance between access to justice and prevention of unmeritorious claims, which would be undermined by the proposed reforms.
The proposed reforms fail to distinguish between good and bad claims 39.
Notwithstanding our opinion that the Government is overstating the volume and impact of unmeritorious cases, we are deeply concerned that legitimate challenges and challengers would be affected by the reforms intended to discourage unmeritorious or vexatious claims. The Government’s proposals will have the effect of preventing important claims being brought and limiting the ability of the public to hold public authorities to account.
Under the Marine and Coastal Access Act 2009.
Protective Costs Orders (Q26–Q30, and Q34) 40. The proposed changes to Protective Costs Orders, if introduced alongside the proposed standing reforms, would result in a “Catch-22” situation where any claimant with standing to bring a claim would be excluded from the PCO regime. Above this, we are concerned that the proposals would subvert the purpose of PCOs, which were introduced as a means of “levelling the playing field” so that claimants with limited funds would be able to pursue legitimate claims in which the court is satisfied there is strong public interest. With reduced access to PCOs, parties with limited funds would be prevented from bringing legitimate judicial review claims by the fear of the possible cost implications. We are already concerned about NGOs with limited means but good claims being “priced out” by the costs risk. Reducing the number of judicial reviews by deterring all but those of major resources, regardless of the merits of the claim and the public interest involved, would be a deeply retrograde step. The Public Sector Equality Duty and Cases of Procedural Defect (Q12–Q18) 41.
The amendments the government proposes to the requirement to have “due regard” to the public sector equality duty and to the assessment of cases raising a procedural defect will seriously limit the ability of claimants to review flawed public decisions. Contrary to the assertion in the government’s report, review of decisions based on a breach of the public sector equality duty or a procedural defect does result in substantively different decisions (e.g., R (on the application of Kaur) v Ealing Borough Council  EWHC 2062, in which the Southall Black Sisters secured funding following reconsideration of a decision whose racial impact had not been properly assessed). The permission stage is not the appropriate time to assess the comparative probabilities of different outcomes of the case. There would be significant cost and time implications of doing so, and there would tend not to have been appropriate disclosure for the issues to be properly assessed. This proposal would have the result of ultimately good claims being barred from proceeding.
We do not accept the government’s position that public bodies “adopt an overly risk averse approach to managing legal risk”. Public bodies are legally accountable for their decisions and it is appropriate that they should be concerned that the decisions they make are lawful. Reducing the legal weight of the public sector equality duty will lead to more discriminatory decisions being made (just as limiting the people who have standing to challenge decisions will lead to more unlawful decisions being made). The incentive provided by the risk of judicial review proceedings to ensure legality of decisions should be preserved. It is vital to recognise that the equality duty is not about “box ticking”, but in many cases goes to the heart of high-quality and lawful public decision-making.
The equality impact of these proposals 43.
We have serious concerns about the equality impact of these proposals. By definition, the public sector has more impact on the most vulnerable in our society, by reason of their dependence on state services: e.g., those on low incomes, disabled people or those with mobility or other health issues, the elderly, etc.
44. In relation to the proposed changes in interveners’ costs: this will not constitute a barrier to intervention on the part of business and other wealthy interests. However, it will seriously undermine the ability of third sector organisations to intervene and as such will have a disproportionate effect on the protected or otherwise vulnerable groups who are represented by voluntary sector organisations. 45.
Restricting funding for judicial reviews which do not receive permission will have the effect of putting many specialist lawyers out of business. We believe this to be a draconian proposal which fails to recognise that— the question of granting permission may be finely balanced (indeed, there are cases where a judge refuses permission but the Court of Appeal grants permission; if judges are not always right about the granting of permission, it is excessive to expect lawyers to be); and permission is often not granted because a settlement has been reached before permission is considered, or some other event (e.g., a higher court judgment that resolves the issue in favour of the claimant) has rendered the claim academic.
46. If these fee-restricting proposals are introduced and the number of specialist lawyers in practice is consequently reduced, we are concerned about the effect this will have on our members’ ability to access lawyers and bring claims. Conclusion 47.
In summary, our answers to the Government’s questions are as follows. Q9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples? No. We believe that application of the current sufficient interest test is an appropriate method of determining whether a person or organization is properly placed to bring a judicial review. Q10: If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? No. For the reasons detailed above, the proposed alternatives misunderstand the purpose of judicial review and would disrupt its proper use.
Q11: Are there any other issues, such as the rules on interveners, we should consider in seeking to address the problem of judicial review being used as a campaigning tool? No. We do not accept that judicial review is being inappropriately used as a campaigning tool. The proposals in relation to the rules on interveners would be detrimental for the reasons detailed above. Q12: Should the consideration of the “no difference” argument be brought forward to permission stage on the assertion of the defendant in the Acknowledgment of Service? No. There has often not been sufficient disclosure at this stage for a proper assessment of “no difference” to be made, and this proposal would increase the time and cost of permission hearings. Q13: How could the Government mitigate the risk of consideration of the “no difference” argument turning into a full dress rehearsal for the final hearing, and therefore simply add to the costs of proceedings? For a proper “no difference” consideration to be made, a full dress rehearsal of the final hearing would inevitably occur. This is a major reason we oppose bringing forward the time that this argument is made. Q15: Are there alternative measures the Government could take to reduce the impact of judicial reviews brought solely on the grounds of procedural defects? Procedural defects in decision making render that decision unlawful and, as detailed above, reconsideration of the decision often makes a substantive difference. We do not agree that the Government should be limiting the right to judicial review when there has been a procedural defect. Q16: Do you have any evidence or examples of cases being brought solely on the grounds of procedural defects and the impact that such cases have caused (e.g., cost or delay)? No. Q17: Can you suggest any alternative mechanisms for resolving disputes relating to the PSED that would be quicker and more cost-effective than judicial review? Please explain how these could operate in practice. The PSED is and should continue to be an enforceable legal requirement of any public decision making. It is appropriate that breach of the PSED can be challenged in the courts by way of judicial review. We do not agree that an alternative mechanism should be introduced. Q18: Do you have any evidence regarding the volume and nature of PSED-related challenges? If so, please could you provide this. No. Q26: What is your view on whether it is appropriate to stipulate that PCOs will not be available in any case where there is an individual or private interest regardless of whether there is a wider public interest? If this is introduced alongside the proposed changes to the standing rule, it will mean that in any case in which a claimant has standing, they will not be entitled to a PCO. This would severely restrict the ability of claimants to bring judicial reviews by exposing them to a financial risk that they are unable to bear.
Q27: How could the principles for making a PCO be modified to ensure a better balance (a) between the parties to litigation and (b) between providing access to the courts with the interests of the taxpayer? The existing purpose of PCOs is to reach this balance, and we believe that it is achieved. Q30: Should fixed limits be set for both the claimant and the defendant’s cross cap? If so, what would be a suitable amount? No. The judge considering the case is in the proper position to decide on what the suitable cap should be. Q31: Should third parties who choose to intervene in judicial review claims be responsible in principle for their own legal costs of doing so, such that they should not, ordinarily, be able to claim those costs from either the claimant or the defendant? Ordinarily, interveners do stand their own costs. Judicial discretion over the matter of costs is the correct and proper approach. Q32: Should third parties who choose to intervene in judicial claims and who cause the existing parties to that claim to occur significant extra costs normally be responsible for those additional costs? No. Judges currently have discretion over the award of costs and this should be maintained. Interveners provide valuable input to cases where matters of significant public interest are in play. Increasing the costs risk of intervening will restrict the ability of expert voluntary sector organisations to contribute to important cases and will diminish the quality of judicial decisionmaking on these matters. Q34: Do you have any evidence or examples of the use of costs orders including PCOs, wasted costs orders, and costs against third parties and interveners? No. Closing 48. We hope that we have shown above that in every case, the Ramblers’ judicial review actions have been to assert or reassert the intention of Parliament where its interpretation has gone awry, or where through its lack of clarity the law has been arbitrarily applied or misapplied at local government level or by Inspectors acting for the Secretary of State. For the reasons we have mentioned, we have not brought proceedings to generate publicity, or challenge the fundamental legality of high-level decisions, or derail major schemes. We have explained why we doubt that many NGOs use the procedure for any such purposes. 49. In summary, we have grave concerns about the potential impact of the Government’s proposals for further reform of judicial review and its impact on our society. In particular, it is our opinion that the proposals—
stem from a mistaken premise fail to take into account the purpose and nature of judicial review fail to recognise the existing adequate safeguards in the system fail to distinguish between good and bad claims
have a disproportionate effect on members of protected or otherwise vulnerable groups. 50.
We urge the Government to reconsider their proposals.
EUGENE SUGGETT Senior Policy Officer, Advocacy and Engagement Division The Ramblers