Duncan Lewis

Judicial review is fundamental to rule of law says top senior judges

Date: (14 February 2013)    |    

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Last November David Cameron had made a speech to the Confederation of British Industry in which he stressed the need to get control on judicial review which he described as a “massive growth industry”. He was talking on the need to give businesses a free hand by abolishing unnecessary restraints.

Judicial review allows claimants to challenge the decisions of public bodies which may have misused or exceeded their powers.

Now two top senior judges of Supreme Court in the UK have warned that the government should be careful on how it was going to limit the availability of judicial review, as access to legal process was fundamental to rule of law.

Subsequent to the speech of David Cameron a consultation paper the government said it wanted to abolish oral applications for permission in cases where there had already been some sort of prior judicial process or where a judge had decided by reading a written application that a claim was totally without merit.

To discourage such complaints the government proposed increase of court fees £275 to as much as £705, limiting the three month time limit to six weeks in planning cases and 30 days for public procurement challenges.

The president of the Supreme Court Lord Neuberger in an oral evidence to the House of Lords constitution committee on Wednesday said that any attack on judicial review or any attempt to limit it had to be looked at very critically.

A powerful executive may find judicial review an irritant but it is increasingly essential to have fundamental control on the executive for which judicial review was very vital. The executive members who are aware of the fact that they are subject to judicial review ensures them in carrying out their jobs properly.
Neuberger's remarks were endorsed by Lord Hope, the court's deputy president. It would be very unfortunate for legislation to cut back the opportunity for judicial review, Hope said.
He added that it was fundamental to the rule of law in the country that executive decisions were open to review by judges to see that they conformed to what the rule of law requires. Any legislative changes would have to be undertaken very cautiously to see that they don't disturb that absolutely vital part of our constitutional arrangements.
The two judges added that legislative changes like cutting back on time limits had its fallout and should be avoided so that the judiciary could get along with the changes which were being made at the moment.
Neuberger supported his deputy’s concern and said that shorter time limits would make people take hasty decisions by proceeding with complaints when they would not have done if they had more time to think. Many applications would be filed for time extension and the amount of litigation would increase rather than the other way round it was a hypothetical at the moment but still had to be thought over carefully he added.