Top judges raise concern over plan to restrict judicial review challenges

http://www.theguardian.com/law/2014/jun/25/judges-restrictions-judicial-review-challenges

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Restrictions on judicial review challenges may be motivated more by a desire to avoid political embarrassment than the need to save money, a senior judge has suggested.

Appearing before the House of Lords constitution select committee, Lady Hale, deputy president of the supreme court, said she understood that ministers did not enjoy having their initiatives held up or overturned in the courts.

The Ministry of Justice is introducing measures in the criminal justice and courts bill currently before parliament that will make it more costly for NGOs to bring legal challenges against government or local authority decisions.

"I'm not sure that this is really a question of public resources," Hale told the committee. "I think the problem is, not surprisingly, that nobody who is running a government department, or who is operating in a government department, is very happy when somebody comes along and says the decision you have just taken is not in accordance with the law. Nobody likes that."

Lord Neuberger, president of the supreme court, also voiced concern about the impact of the proposed reforms. "If you don't have a healthy and accessible judicial review function for the courts then you don't have a satisfactory modern democratic society," he said.

"Therefore, I would start by saying any interference with or restriction of judicial review has to be looked at very carefully … Because judicial review is so important and because the world is imperfect, I think one has to accept as well worthwhile and inevitable the fact that there will be some applications that are unmeritorious and nonetheless get pursued and hold things up."

Problems with delays to the planning system were being sorted out, Neuberger said, by "speeding up the process [and] by having more dedicated judges".

The justice secretary, Chris Grayling, has been outspoken in his opposition to charities who "target the legal system as a way of trying to get their policies accepted" by bringing judicial reviews. He has described a challenge brought by the Plantaganet Alliance over the burial place of Richard III, for example, as a "complete waste of taxpayers' money".

In other issues raised during the committee session, Neuberger told peers that British judges were becoming more "self-confident" in defying rulings of the European court of human rights (ECHR) in Strasbourg.

He said: "There's no doubt that we can and do depart from Strasbourg decisions. Sometimes it is our duty to say to Strasbourg: 'Think again,' and, to be fair, on a couple of occasions we've done that and Strasbourg has thought again and changed its mind.

"There could in principle be occasions where we have said to Strasbourg: 'Think again,' they have thought again and they have stuck to their view, when we would then have to decide do we still stick to our view or do we follow Strasbourg. I've no doubt that 10 years ago the answer from almost any judge would have been that we would follow Strasbourg. Now, I think that more judges would be prepared to contemplate not following Strasbourg."