Judicial review procedures to be made simpler

James Cusick
Sunday 23 October 2011 02:30

The Law Commission yesterday announced an overhaul and simplification of procedures for judicial review - the increasingly popular legal avenue for citizens to challenge the actions of the state.

When adopted, it is hoped the new review system will reduce waiting times by up to half and increase access to those seeking review.

The Law Commission, responsible for developing and reforming English law, regards the 1977 changes to judicial review mechanisms as one of its main achievements. In 1980 there were 500 applications for judicial review. Last year there were 3,000.

Review case loads were increasing and procedures needed to be further simplified, according to the chairman of the commission, Mr Justice Brooke.

He said the judicial review procedure had become 'a victim of its own success'.

Since 1977, legal action has been obtainable in the High Court against lower courts and administrative authorities. The purpose of judicial review is to keep the powers of government within their legal bounds and is increasingly seen as the mechanism that can compel public authorities to perform their duties.

Mr Justice Brooke said: 'We hope that this second report will lead to still further improvements in the way that citizens may have access to the courts when they seek to ensure that public bodies act lawfully, fairly and rationally - in other words that they obey the rule of law.'

One of the key recommendations likely to ease the courtroom workload of judicial review will be the intention that the preliminary consideration stage become 'informal'. The aim is to conduct this 'almost entirely on paper'.

The Law Commission also recommends that once an application for judicial review has been lodged, the judge who determines the application may, in appropriate cases, send either side a 'request for information'.

This innovation is designed to provide the judge with information at an early stage and give the defending party the opportunity to put forward a 'knock-out point' on paper without the expense of a full hearing.

The commission has also ordered the time limits that govern judicial review to be clarified. On costs, the commission recommends that the court have the power to award a successful party costs out of central funds, if appropriate, where a case has been allowed to proceed beyond arguments of practice and procedure to a 'substantive' hearing.

The commission also recommends that the Legal Aid Board be empowered to take account of 'public-interest challenges' when considering legal aid applications.

In judicial reviews involving homelessness, an increasing part of court reviews, the commission says there should be a right of appeal on points of law to a court or independent tribunal.

One recommendation, likely to be challenged by legal traditionalists, will be the Law Commission's intention to replace Latin-named 'remedies' with more easily understood terms. The stage known as 'leave' will in future be called 'preliminary consideration.' The methods available in law for enforcement, recovery, and protection of rights, known as mandamus, prohibition, and certiorari, will be replaced with 'a mandatory order', 'a restraining order' and 'a quashing order' respectively.

Administrative Law: Judicial Review and Statutory Appeals; HMSO; pounds 18.75.

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