24 Oct 2016, 42 mins ago

Yesterday, the Prime Minister gave a speech to the CBI in which he said that the country was in “the economic equivalent of war today… and we need to throw everything we’ve got at winning in this global race”.

He set out five ways in which he was going to change things to “get things done”:

1) Cutting back on judicial reviews;
2) Reducing government consultations;
3) Streamlining European legislation;
4) Stopping the gold-plating of legislation at home; and
5) “quite simply: getting our roads and railways built more quickly”.

Regarding judicial review, he said:

“This is a massive growth industry in Britain today. Back in 1998 there were four and a half thousand applications for review and that number almost tripled in a decade. Of course some are well-founded – as we saw with the West Coast mainline decision. But let’s face it: so many are completely pointless. Last year, an application was around five times more likely to be refused than granted. We urgently needed to get a grip on this. So here’s what we’re going to do. Reduce the time limit when people can bring cases. Charge more for reviews so people think twice about time-wasting. And instead of giving hopeless cases up to four bites of the cherry to appeal a decision, we will halve that to two.”

Later that day, the Justice Secretary published these remarks on the Ministry of Justice website:

“The Government is concerned about the burdens ill-conceived cases are placing on stretched public services as well as the unnecessary costs and lengthy delays which are stifling innovation and economic growth.

We plan to renew the system so that Judicial Reviews will continue their important role but the courts and economy are no longer hampered by having to deal with applications brought forward even though the applicant knows they have no chance of success. We will publish our proposals shortly.”

The measures which will be considered include:

  • Shortening the length of time following an initial decision in which an application for a judicial review can be made in some cases – and stopping people from using tactical delays;
  • Halving the number of opportunities currently available to challenge the refusal of permission for a judicial review, from up to four currently, to two; and
  • Reforming the current fees so that they cover the costs of providing judicial review proceedings.

A public engagement exercise on the plans will be carried out shortly.

Given the context of the Prime Minister’s statement, one would think that these measures were aimed at increasing growth by reducing the economic impact of judicial reviews. However, it is usually the government or regulators who are the defendants in judicial review cases, so it is difficult to see why making judicial review less accessible could benefit private sector growth.

In any event, it seems likely that it will be immigration and asylum applicants who will be affected most by the proposed changes if they are brought into force.

Most obviously, the vast majority of judicial review applications are against immigration and asylum decisions – 8,649 out of a total of 11,200 applications in 2011 (source: Ministry of Justice Judicial and Court Statistics 2011). It stands to reason therefore that this group will be affected more than any other by the proposals.

Furthermore, although the proposals are somewhat vague at the moment, it is already easy to see that two of them will have a disproportionate impact on immigration applicants.

Firstly, the proposal to reduce the time limit. The current rule is that the application must be filed promptly; and in any event not later than three months after the grounds to make the claim first arose. Presumably the government is thinking about considerably reducing the three-month period. It is in the nature of many immigration applications for judicial review that the applicant will be in another country, giving rise to real difficulties in taking instructions, obtaining documentary evidence, etc. The number of such applications is only set to increase with the ongoing abolition of appeal rights often leaving judicial review as the only available remedy. A severe reduction in the time limits may cause real problems for such applicants.

Secondly, the proposal to charge more for judicial reviews will have a particularly harsh impact on immigration applicants. The Ministry of Justice’s statement indicates that the charges will be intended to cover the costs of providing judicial review proceedings. If so, this will lead to a significant increase in the cost of an application. Such an increase is likely to have a far more serious deterrent effect on individual immigration applicants than, for example, on cases where the applicant is a company or campaigning organisation.

It appears likely therefore that, whatever the stated intention behind these proposals, it will be potential immigration applicants for judicial review who will be most affected by them.