Cameron to cut access to Judicial Review and the Equality Act in ‘wartime’ measures 19 Jun 2013

In a speech to business leaders yesterday the Prime Minister outlines proposals to limit access to Judicial Review of government decisions.   He also stated that as of now there is no need to carry out an Equality Impact Assessment, stating “So I can tell you today we are calling time on Equality Impact Assessments” which he brands a pointless tick box exercise hampering the country in the global economic race.

The assessments, introduced in the 2010 Equality Act, involve assessing “the likely or actual effects of policies or services on people in respect of disability, gender and racial equality”.   Supporters say they are essential to improving fairness, while opponents argue they are ineffective, expensive and time-consuming.

The proposals have been greeted with shock and bewilderment by the legal profession, who consider that the measures are an excessive attack on access to justice and checks on government at a time when the country is not actually in a wartime situation.

The Prime Minister told the CBI that in “1998 there were four and a half thousand applications for review and that number almost tripled in a decade. Of course some are well-founded – as we saw with the West Coast mainline decision. But let’s face it, so many are completely pointless. Last year, an application was around 5 times more likely to be refused than granted.”

The government plans to make it more difficult to make application for Judicial Review by:

  • reducing the three month time limit during which action can be brought; and
  • making it more expensive to take such action

Many have stated that these comments show little insight into the process nor do they provide a fair analysis of the cases conducted under Judicial Review. The media, and perhaps the prime minister, have also not grasped that Judicial Review is a “review” of a decision and not an “appeal.”

A proper look at the statistics shows that, although last year there were more Judicial Review applications than ever before – 11,200 compared to 4,207 in 2004. The vast majority of these cases however ( as they are every year) are immigration and asylum cases.

Judicial Review is only available to challenge the decisions of a public body, although the Equality Act also applies to all service providers. Recent high profile cases in which the government were unsuccessful include Virgin’s application against the grant of a rail franchise to another company and the Solar industry’s application against the change in legislation regarding feed in tariffs.

The increase in fees will certainly restrict access for those on lower incomes, although the reduction in time limit may result in an increase in applications given that there will be less time for pre-action negotiation. It will make it more difficult for people to get the right legal advice within the time frame and may result in more out of time applications.

Judicial Review is often the only way open to the public to challenge decisions or lack of action by local authority departments such as social services and planning, and is one of the checks and balances inherent in the UK’s unwritten constitution. The importance of Judicial Review as an objective check on government is highlighted in the dissenting judgment of Lord Atkin in the actual wartime case of Liversidge v Anderson [1942] AC 206 where the issue of judicial checks on ministerial decision came into question:

I know of only one authority, which might justify the suggested method of construction. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that’s all.’

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Safiye Connor is an Associate in the Social Welfare Department.

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