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Attack on judicial review

Our People - Andrew Guile
19 April, 2013

Justice Secretary Chris Grayling is aiming to reduce the number of judicial review applications.

What is ‘judicial review’ and why does he want to reduce their numbers?

Judicial review is a process started in the High Court where a judge is asked to consider the actions or a decision of a public body (e.g. your local council, or a government department) on the grounds that the action/decision was unlawful or irrational (this is a simple view of judicial review solely for the purposes of ths article). High numbers of these cases are brought in relation to immigration and asylum cases according to analysis conducted the The Guardian Newspaper. From 2004-2012 the number of applicati0ns for judicial review has risen from 4,207 to 11,200.

Figures reveal that only one in six applications are allowed to proceed (i.e. five in six are felt by a judge considering the cases on the papers alone to have no merit), and, of those that proceed, only a small percentage succeed.

What is being considered is making the time period shorter for making such applications (currently you have to bring a challenge within three months of the date of the action/decision being challenged), making the application fee higher and making it tougher to appeal refusals by judges to allow applications to proceed.

While it would seem to be the case that a number of unmeritorious cases are being brought, it is essential that the remedy not be curtailed. Fear of challenge by way of judicial review is an important check on public bodies to ensure that they exercise their power and discretion appropriately (e.g. how local authorities seek to set funding levels for care homes or how the Independent Police Complaints Commission oversee complaints against the police). If you reduce the fear of this judicial oversight, you may rightly fear that the powers of public bodies may be exercised with less care.

Our solicitors have been involved in many judicial review cases over the past twenty years. These have involved challenges against the Secretary of State for Health, the Mental Health Review Tribunal, the Independent Police Complaints Commission, the Metropolitan Police and various local authorities. While not all were successful, the availability of a remedy by way of judicial review is essential to the rule of law, i.e. to give the ‘man in the street’ a route by which he challenge the might of a public body like a government department or the Police.

If a large percentage of unmeritorious applications seem to originate from a small area of law then perhaps being more prescriptive on how judicial reviews in that area of law can proceed would be justified. However, a wholesale and indescriminate curtailing of access to this essential remedy is unnecessary and dangerous.

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