Wednesday, 21 November 2012

JR reforms over-hyped.....JSB at report stage in Lords

I have seen some comments relating to the announcement that JR is going to be reviewed which would have you believe that the Defence of the Realm Act is going to be reintroduced and all left wing JR abusing lawyers shipped off to a concentration camp on the Isle of Wight (I am currently reading the new CJ Samson counter-factual novel).  In fact the Secretary of State said this:

I am today announcing a review of the judicial review process. Judicial review is a critical means of holding the Executive to account, ensuring that decisions are lawful. However there has been a huge growth in the use of judicial review,which has expanded far beyond what was originally intended. In 1975 there were 160 applications for judicial review, but by 1998 this had grown to around 4,500 applications, and to around 11,000 by 2011. In 2011, for every application for permission to bring a judicial review that was granted, five were refused (a higher proportion was refused in immigration and asylum cases). In those cases where permission was granted, an even smaller proportion was successful. Much of this growth is the result of an increase in applications to review decisions in immigration and asylum cases, but judicial review is also used as a means of challenging other types of decisions, for example, in planning matters, in large infrastructure projects, in procurement exercises and in other key reform programmes.  The Government are concerned about the burdens that this growth has placed on stretched public services.  This can lead to unnecessary costs and lengthy delays, and may in some cases stifle innovation and frustrate much needed reforms, including those aimed at stimulating growth and promoting economic recovery. The Government therefore intend to seek views on a package of options designed to tackle these problems. This package will include shortening time limits in certain cases, restricting the opportunities for an oral reconsideration of the application for permission in certain circumstances, and introducing new fees. The purpose of this is not to deny or restrict access to justice, but to provide for a more balanced and practicable approach, ensuring that weak, frivolous and unmeritorious cases are identified early, and that legitimate claims are brought quickly and efficiently to a resolution. In this way, we can ensure that the right balance is struck between reducing the burdens on public services, and protecting access to justice and the rule of law.

Now if one ignore some absolute howlers, for which the relevant civil servant or SPAD should be sacked (e.g. the statistics - plus things like - procurement decision are not challenged by way of JR - they have their own statutory challenge procedure which preludes JR)  - there is in fact a problem - the Admin Ct literally cannot cope with the numbers of JRs.  The backlog is caused however, by immigration.  There is a direct correlation between aggressive immigration policies and the number of JRs.  Aggressive attempts to deport illegal immigrants generates vexatious (and some genuine) challenges to deportation orders.

The P of QBD is not happy:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

He later named and shamed some solicitors but stopped short of referring them for disciplinary action -  here is an example:

  1. The first case does involve the very same case of Hamid. On this occasion we shall name the solicitor as MQ Hassan. After the rejection of the application referred to in the earlier judgment of the court, an application was made again to this court on virtually the same points. However the application contained no disclosure whatsoever of the previous application and its failure. There was without any doubt a gross breach of the obligation of disclosure that arises on an ex parte application. Mr Hassan has appeared here today and apologised. He said that his firm is in the process of tightening its procedures so this would not happen again.

  2. We consider that the appropriate course of action to take in this case is for Mr Hassan to report to the Solicitors Regulation Authority what steps he is taking to ensure that all those who work in his firm are properly trained in particular in the obligation incumbent upon a solicitor to make full and proper disclosure of all material facts to the courts. The court will communicate itself with the Solicitors Regulation Authority to say that it has required that. The Solicitors Regulation Authority can consider whether there is a proper training programme in hand. However, we will add that if this happens again in this firm, we shall refer the matter for consideration by the disciplinary branch of the Solicitors Regulation Authority.

  3. Mr Hassan, this is your last chance and you must put your house in order.

The Court, with HMG's help, needs some new tools to weed out crazy JRs without them reaching the oral permission stage when too much time and money is wasted.  Such a reform does not involve the end of the rule of law, merely its enhancement....

JSB - that draft legislation about which I have written not a little - past ramblings here - is in report stage before the Lords - they went through Part 1 2 days ago and will resume today when we might get to some of the interesting bits.

To assist, the Joint Committee on Human Rights has made some useful suggestions, mostly made to it in turn by David Anderson QC, the Independent Reviewer of Terrorism Legislation.  On the whole, I fully support these proposed amendments and hope that HMG takes them up.  I will post further once the Report stage is fully underway on the juicy bits of the Bill.

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