Government response to the consultation ‘Judicial review: proposals for further reform’

On 5 February 2014, the Ministry of Justice published the Government response to the consultation ‘Judicial review: proposals for further reform’.

In the response, the Government says that it will:

  • create a Planning Court to speed up the consideration of planning and related judicial reviews and statutory challenges;
  • make changes to how the courts deal with judicial reviews which are unlikely to affect the outcome for the applicant by amending the current test of ‘inevitable’ to ensure judicial reviews cannot proceed on the basis of minor ‘technicalities’;
  • reduce the potential for delay to key projects and policies by increasing the scope of leapfrogging appeals (where a case can move directly from the Court of first instance to the Supreme Court);
  • strengthen the implications of receiving a Wasted Costs Order by placing a duty on the courts to consider notifying the relevant regulator and/or the Legal Aid Agency when one is made;
  • set out the circumstances in which a court can make a protective cost order in non environmental judicial reviews to ensure they are only used in exceptional cases properly in the public interest;
  • establish a presumption that interveners in a judicial review will have to pay their own costs and any costs that they have caused to either party because of their intervention;
  • introduce new requirements for all applicants for judicial review to provide information about how the judicial review is funded in the courts and Upper Tribunal and how the courts should use this information;
  • restrict payment of legal aid for work on permission applications unless permission is granted subject to discretionary payment by the Legal Aid Agency (LAA).

The consultation included a question on whether disputes relating to the Public Sector Equality Duty (PSED) could be better resolved by an alternative mechanism to judicial review. This followed a recommendation by the Independent Steering Group, whose report was published on the same day as the consultation was launched (p30).

Of the 325 total responses to the consultation, 136 respondents answered some or all of the questions on the PSED. A majority of those 136 responses (107) responded negatively to the question, arguing that judicial review should remain the principle mechanism for resolving disputes related to the PSED. 18 (of the 136) respondents saw some scope for using alternative mechanisms, and made suggestions in this regard. 11 respondents gave a mixed view, being sceptical of alternatives to judicial review but accepting that some may exist (p30).

Regarding the PSED, the response states: Consideration of the results of the consultation questions on the Public Sector Equality Duty as part of work to implement the recommendations of the Independent Steering Group will be taken forward by the Government Equalities Office (p20).

An article by Joshua Rozenberg in the Guardian on 5 February discussed the consultation response.

The Equality and Diversity Forum (EDF), EDF members and other organisations responded to the consultation on legal aid reform that closed on 14 February 2011.