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The government is inviting views on potential measures for the further reform of Judicial Review (JR). The consultation exercise, which closes on 1 November 2013, seeks views on proposals in a number of key areas, including leapfrogging appeals to the Supreme Court, the creation of a specialist planning chamber, amending the test for standing, and various costs and funding issues.
Judicial review allows the court to consider whether, for example, a government department has gone beyond its powers, a local authority has followed a lawful process or an arms-length body has come to a rational decision. As such, it is a crucial check to ensure lawful public administration. It considers the process of making the decision rather than the decision itself.
The number of judicial reviews brought in recent years has increased and as such the Government is concerned that the process is open to abuse. Some criticisms of the current process include concerns regarding time and money wasted by weak cases brought to generate publicity or to delay implementation of an unpopular decision but one which was properly made. The Government is also concerned that a significant proportion of these 'weak' applications are funded by the tax payer and that, among other things, this is stalling development and infrastructure projects, which would otherwise promote growth and economic recovery.
The Consultation exercise seeks views on a number of areas, including but not limited to:
• the courts' approach to cases, which rely on minor procedural defects that would have made no difference to the outcome of the case
• rebalancing financial incentives 'so that those involved have a proportionate interest in the costs of the case'. This part of the consultation includes questions in relation to paying for permission in JR cases, awarding costs, expanding the circumstances in which a wasted costs order could be made, the position in relation to protective costs orders (PCOs), the costs position in relation to third parties who choose to intervene in JR claims, etc
• speeding up appeals to the Supreme Court in a small number of appropriate (ie nationally significant) cases including the circumstances in which a case should be subject to leapfrogging arrangements, the applicability of any leapfrogging arrangements, whether the requirement for the parties' consent to leapfrogging should be required, etc
• the creation of a specialist Land and Planning Chamber
• locus standi for bringing a JR, including a proposal to restrict standing to those with a 'direct interest' in the case
• mechanisms other than JR for resolving disputes related to the public sector equality duty (PSED)
These proposals follow those in the consultation Judicial Review-Proposals for Reform which ran from December 2012 to January 2013 during which significant objections to the proposals were raised.
Do you have any experience of the Judicial Review process being exploited or used for tactical reasons? Please leave us a comment telling us your thoughts.
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