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.