A few months later and the Ministry of Justice have announced they wish to take the reforms a few steps further. The second consultation broadly reflects the government's concerns with unmeritorious claims, and further ways in which to restrict these, and, notably, the apparent spectre of claims brought only to attract publicity. The consultation document (which can be found here) outlines the following issues and proposals:
- Procedural defects: the government considers that claims revolving around "minor procedural defects" can too often be used to delay otherwise reasonable decisions or actions, and which would have made no difference to the ultimate decision complained of. The government seeks views on the following proposals: 1) bring forward "no difference" arguments so that these can be fully considered (and by oral argument if necessary) at permission stage; and 2) introduce a "lower test of probability" necessary to show that the alleged flaw would have made no difference to the defendant's decision.
- Standing: the government is concerned that "individuals or groups without a direct and tangible interest in the subject matter to which the claim relates" are (potentially) able to bring judicial review proceedings, and that the test for standing has been unreasonably wide. Proposals for reform suggest applying the narrower tests for standing as found in EU law and the Human Rights Act 1998. These require a more direct interest in the case, focussing on the relationship between the applicant and the potential outcome. Section 7(3) of HRA 1998 sets out a narrow test for standing, where the applicant has to be a 'victim' of the unlawful act committed by a public body. This prevents any public interest group from bringing a judicial review (unless that group were victims themselves), which limits the number of judicial review applications made.
Similarly, EU law also limits the range of applicants for judicial review. Article 263 of the Treaty on the Functioning of the European Union (under the Treaty of Lisbon) allows judicial reviews to be instituted when an act of a public body is of 'direct and individual concern' to the applicant.
- Costs and legal aid: in conjunction with more widespread changes to legal aid, the government proposes to limit the award of legal aid to legal services providers only to where an issued claim is granted permission.
- Planning: the government created a Planning Fast Track after its earlier consultation but is now considering entirely re-routing judicial reviews of planning decisions away from the Administrative Court and to a "Specialist Planning Chamber" in the Upper Tribunal. It anticipates that this will allow for the expedited consideration of such cases by specialist judges.
- Disputes relating to the public sector equality duty (PSED): the government is exploring whether judicial review is a necessary, economic or appropriate avenue by which a public body's alleged breach of the Equality Act 2010 is challenged.
- Leapfrogging: the government seeks views on limiting the circumstances in which a leapfrog appeal to the Supreme Court (bypassing the immediate appellate court) will be permitted, but also of extending the range of tribunals to which leapfrogging should be an option. This does not exclusively affect judicial review and the government is considering whether these proposals should be introduced in respect of other types of (civil) case where an appeal to the Court of Appeal is, at some stage, open to the parties.
The Government consultation will close on 1 November 2013.