No evidence to support Government proposals to control Judicial Review

Published on Tuesday, 23 April 2013 12:21
Posted by Vicki Mitchem

A Coalition of environmental NGOs today criticised Government proposals to tackle the 'soaring' number of Judicial Review applications being made in England and Wales.

The Coalition for Access to Justice for the Environment (CAJE) said that there was no evidence to support the description of a government overwhelmed by judicial reviews on planning issues, nor any data to support a credible claim that judicial review presents a significant impediment to economic progress.

CAJE said that the proposals, coming shortly after the Government lost a case in the European Court over the meaning of 'prohibitive expense' in environmental legal proceedings, represented an attack on people's constitutional right to challenge public bodies.

Today's announcement follows a 2012 consultation paper claiming that JR is "stifling innovation   and   frustrating   much   needed   reforms,   including   those   aimed   at stimulating growth and promoting economic recovery" and which sought views on proposals to address a reported rise in the number of JRs from 6,692 in 2007 to 11,359 in 2011.

However, the Government acknowledges that immigration and asylum cases make up the vast majority (some 8,734) of the total (11,359) and the 2012 consultation paper contained no data or statistics in relation to planning cases. In fact, figures published by the Ministry of Justice confirm  that  the  proportion  of applications  for  'other  matters'  has remained unchanged  from  2010 (and  has,  in fact,  remained  unchanged  since  2005).

Carol Day, Solicitor at WWF said: "These measures will significantly affect our ability to protect the environment. Judicial  Review  cases  are  not  road  traffic  matters  –  they  concern  complex  legal arguments of unlawful behaviour by public bodies. Restrictions on judicial review are of  constitutional  importance,  and  should  not  be confused  with measures  to  cut  red tape.  Individuals  and  civil  society  groups  should  not  be  denied  their  fundamental  constitutional  right  to  check  an  abuse  of  power  and protect the environment on  the  basis  of  costs-cutting."

CAJE is particularly concerned about proposals to halve the time limit for lodging an application for a JR of a planning decision. This will undoubtedly include a small, but significant, number of environmental cases. The procedures for review of such cases are covered by the UNECE Aarhus Convention and EU law, which requires such procedures to be "timely", thereby ensuring that individuals and groups have enough time to construct what may be complex cases raising issues of public importance.

The Government also proposes to ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit, even though such cases can go on to be successful.  The Friends of the Earth 'solar case' was  originally  refused  permission  on  the  papers,  but was  granted permission with expedition at  oral renewal and subsequently succeeded in both the High Court  and Court  of Appeal, with the Government  being refused permission to appeal to the Supreme Court.

Friends of the Earth's Head of Legal, Gita Parihar, said: "Our successful legal challenge played a key role in saving the UK's solar industry by preventing the Government from changing tariffs in an unlawful way. Under these rule changes the challenge would have fallen at the first hurdle - with tragic results for jobs and action on climate change.  These proposals are an affront to justice."

Finally, CAJE is also concerned about the introduction of a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down. Increasing the fees for judicial review at a time when the UK is being infracted  by  the  EU  over  the  high costs  of  legal  action  in  environmental  cases will clearly make it more difficult for concerned individuals and civil society groups to bring environmental cases.

Source: FoE

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