Judges and the government

Citation

Macrory, R. (2014), "Judges and the government", International Journal of Law in the Built Environment, Vol. 6 No. 1/2. https://doi.org/10.1108/IJLBE-02-2014-0011

Judges and the government

Article Type: Guest editorial From: International Journal of Law in the Built Environment, Volume 6, Issue 1/2

There was probably always going to be a sustained fight-back. The last 30 years have seen the steady growth of judicial review, where the courts examine the legality of government decisions. The need to apply European Union law – and sometimes refer cases to the Court of Justice of the European Union – and the convention on Human Rights has substantially added to the scope of review. At the same time the courts have shown themselves increasingly liberal as to who may bring cases – non-government organizations (both local and national) concerned citizens (whether they own affected property or not) have all been granted standing to bring cases. The failure to follow proper procedure or to interpret legal powers correctly would be considered by most people (even politicians) a legitimate ground for complaint. But some court decisions have come perilously close to questioning the substance of a government decision and the tension between unelected judges and elected government and their proper respective roles in a democratic society remains high.

Ministers from all sides of the politician spectrum have often expressed disquiet with the more interventionist decision-making by some of the judges. Charles Clarke, when Home Secretary, was reported to be exasperated when anti-terrorism legislation was struck down by the House of Lords in 2004 as falling foul of the Human Rights Act. Rather than present new legislation that might again be struck down after lengthy litigation, he sought a private meeting with the senior law lord to seek guidance on what changes to the law were needed to make it more compatible with Human Rights Law. Lord Bingham refused to meet him as this would threaten the independence of the judiciary. Both, I think, were acting out of honourable motives, but my own view is that Lord Bingham was wrong and the Home Secretary was right to feel the rebuff deeply.

The present coalition government is now making serious steps to curb what they consider to be unjustified judicial reviews. Last September the Ministry of Justice published a consultation document on further reforms to judicial review, with the government’s response published at the beginning of February this year. A clear major concern is the delay caused by judicial reviews in planning cases, giving rise to substantial delays for developers. But the original consultation document contained an odd mixture of anecdotal horror stories and fairly generalized statistics which did not disaggregate planning judicial reviews from other types, including immigration, which forms the bulk of current judicial reviews.

One of the most controversial proposals was to restrict standing to bring cases to those with a direct local interest in order to "exclude persons who had only a political or theoretical interest, such as campaigning groups". The government has now backed off changes to standing rules, but hopes that tougher reforms to costs principles will deter weak claims. Furthermore, they intend to tighten up the leave stage for judicial review by allowing a court to reject a claim based on procedural defects where it considers the alleged failure would be "highly unlikely" to have made a difference to the actual decision, a considerably less restrictive test than the current one applied.

But a real dilemma for the government in its reforms is that both the UK and the EU (and all other members states) are parties to the Aarhus Convention which gives liberal standing to environmental organizations and individuals challenging environmental decisions by government and requires that access to environmental legal review procedures are "fair, equitable, timely and not prohibitively expensive". The government in its response acknowledges that its more radical proposals on costs regimes cannot apply to Aarhus environmental cases – at least until they know the final outcome of the infringement proceedings brought by the European Commission against the UK on the basis that traditional costs principles in UK judicial review procedures were not Aarhus compatible.

A decision of the European Court of Justice is expected in the next few months and the UK is likely to lose. But for the current reform package, much will depend on the court’s reasoning and the leeway it allows the government. Aarhus certainly is not intended to encourage frivolous claims, but any system that also deters genuine, even if misguided, claims may fall foul of the Convention. The outcome is critical because in practice in this country many planning judicial reviews – and certainly any involving environmental assessment – will inevitably engage Aarhus.

That does not mean that all is right with judicial review. Compared to many countries, it is a fairly gold-plated procedure involving High Court judges, often extensive oral argument and requiring the use of specialized lawyers. The "not prohibitively expensive" requirement has already persuaded the government last year to change the costs rules in order to reduce the risk and exposure of those bringing Aarhus cases. But I question whether the vision of Aarhus for fast and speedy access to independent legal review of environmental decisions is really compatible with the core nature of current judicial review procedures, and no amount of tinkering on the edges with costs regimes will alter that basic problem.

One of the original proposals in the consultation paper might have helped to address this issue. Our tribunal system was radically reformed in 2007 to provide a more coherent and legally robust system and one that is clearly independent from government. The Upper Tribunal now has power to hear judicial reviews and the government originally proposed that planning judicial reviews be transferred to a new chamber within the Upper Tribunal – the Land and Planning Chamber. There would have been considerable attractions to the move. The Upper Tribunal consists of a legal member (a High Court Judge in judicial review cases) plus two non-legal members with appropriate specialist skills and this combination of members with specialist legal and other technical expertise appropriate to the case in hand is appealing.

Furthermore, the Upper Tribunal has a great deal of flexibility in its procedural rules and how it handles cases. To provide a flavour, the current rules include as overall goals:

[…] dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the Proceedings.

These sentiments so echo the spirit of Aarhus that I strongly advocated the transfer not just of planning judicial reviews but also judicial reviews involving environmental law per se, and recommended that we create for the first time in the country at Upper Tribunal level, a Land Planning and Environment Chamber.

But the government has now backed off its original idea of using the Upper Tribunal and has proposed instead retaining judicial reviews within the High Court but within a new specialized Planning Court. This builds upon existing initiatives by the judges for fast track procedures in planning cases. The proposal may well have the effect of speeding up the hearing of cases, but I have regrets that the opportunity for a more radical approach to the handling of reviews has not been seized.

Indeed, one could go further. In 2003 I was commissioned by the government to examine the possible role of an environment tribunal. As part of that study, I examined in detail three years’ worth of environmental judicial reviews in the High Court, around 60 cases. The majority of the claimants were in fact industry rather than environmental NGOs, and most failed to succeed. What became clear was that in a very high number of cases the claimants were really seeking a review of the substance of the decision (not permitted in judicial review) though lawyers tried to disguise this under legal grounds. I estimated that almost two-thirds of cases fell within this category. Most judges saw through the legal subterfuge, and it was a key reason for losing cases.

One response to such a finding is that it simply confirms the view that judicial review is being misused, and that stronger restraints should be imposed to curb any such action. A more subtle approach is to accept that what this indicates is a pent-up demand for some sort of third party merits review and one that should be met. It is a right that has long been resisted in planning and environmental law in this country – only the applicant for planning permission or an environmental permit may appeal on the merits.

I would not go so far as advocating wholly unrestricted rights of appeals to third parties. But what about a system which allowed third parties who had participated in a regulatory procedure (by objecting to a licence application, for example) to have the right to appeal to the First-Tier Environment Tribunal? The grounds would be restricted to the "substantive and procedural legality of the decision" (reflecting the wording of the access to justice provisions of Aarhus).

The First-Tier Tribunal with its combination of legal and technical expertise could be expected to handle such appeals with authority, speed and economy, and could involve mediation where appropriate. If a third party had failed to exercise this right of appeal, and then later tried to bring judicial review proceedings, the courts would almost certainly strike out the case in the absence of very good reason. The channeling of legal actions in this way to the First Tier Tribunal would dampen later unrealistic judicial reviews and provide a more appropriate and less expensive way of resolving many such disputes than current procedures. In the current political climate I accept that any suggestion of even limited third party rights of appeals along these lines is likely to go down like a lead balloon. But equally I suspect that in the long run using the First-Tier Tribunal in this way would (perhaps counter-intuitively) more effectively address many of the concerns of government than some of the current proposals.

Richard Macrory
Faculty of Laws, University College London, UK