Chris Grayling and Judicial Review – An Odd Thought or Two

In today’s Mail on Sunday Chris Grayling MP, Justice Secretary, took the opportunity to launch a fierce attack on the activities of so-called professional campaigners. This, of course, is what the rest of us call the civic sector. Not only are ‘professional campaigners of Britain … growing in number, taking over charities, dominating BBC programmes and swarming around Westminster’ with many entering it as Labour MPs. However, to support this generalisation Mr Grayling produces not one example.

This was the prelude to Mr Grayling’s main argument namely the abuse of judicial review as a means of ‘targeting the legal system as a way of trying to get their policies accepted.’ Quite how this happens is a mystery. We are none the wiser as Mr Grayling once more spares us the details of his case. Naturally, these challenges are undertaken by lawyers who have turned judicial review into a ‘lucrative industry’. Lawyers as fat cats; plus ça change.

Furthermore, the claims that there has been an explosion in judicial review, which according to Mr Grayling has developed since the 1970s, are quite simply wrong. This point is so manifestly wide of the mark to be comical. But as Sir Stephen Sedley brilliantly pointed out in the London Review of Books the vigour of judicial review has waxed and waned down the years. In the 1970s it awoke like Cinderella from a long hibernation. Equally wrong is the claim that there are ‘thousands’ of cases. For example, research by the Public Law Project shows that in 2011 there were just 197 final hearings in civil (non‐immigration) judicial reviews. Indeed, turn to para 78 of the Ministry of Justice’s own consultation paper Judicial Review: proposals for further reform consultation and it becomes clear that only 13 applications from ‘campaigning groups’ had a full hearing, with 6 obtaining the remedy sought. Naturally, it is unlikely that a Daily Mail reader will trouble themselves to read the paper, relying on the misleading picture painted by Mr Grayling.

Of course Mr Grayling’s article is part of a wider agenda. David Lloyd-George once observed there is no point in a full frontal assault, when a side door exists. In other words what cannot be done directly to judicial review by way of ‘reform’, can be achieved indirectly. One of the principal drivers in the revival of judicial review has been the liberalisation of the rules of standing. Section 31(3) of the Senior Courts Act 1981 requires an applicant for judicial review to have ‘sufficient interest’ in the matter to which the application relates. From the decision of the House of Lords in ex parte National Federation of Self Employed [1982] AC 617, and notwithstanding the odd hiccup, the standing requirement has been interpreted in a way that has allowed public interest litigation to develop. This has been a public good for as Lord Diplock famously noted in ex parte National Federation of Self Employed [1982] AC 617, 644:

‘It would, in my view, be a grave lacuna in our system of public law if a pressure group like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.’

Yet despite the absence of evidence of a serious problem the consultation paper proposes to limit standing in judicial review applications to those with only a direct interest (Consultation paper, para 80). In light of this Grayling’s proposed restriction on standing in judicial review is effectively a means of sanctioning government beyond the law. If there is no one with a direct interest who is able to seek a judicial review then the unlawful action will continue uncorrected. For this reason the test of ‘sufficient interest’ has been held to cover public interest litigation where there is no other challenger, the group bringing the challenge is an expert one and where the applicant has ‘sincere concern‘ in the subject of the application. Indeed, this corpus of authority is not simply a recent development but can rightly be seen as restoring ‘a powerful line of older authority’ on standing from before the Great War. (R v Somerset County Council and ARC Southern Limited ex parte Dixon [1998] Env LR 111,121 Sedley J.)

Mr Grayling’s argument that government is unnecessarily vexed by judicial review misses two important features of the existing scheme designed to protect government from unmeritorious challenges. First, the time limits for bringing applications are very short. And second, the leave stage is intended to prevent applications from ‘busybodies, cranks and other mischief makers’ as Lord Scarman put it in ex parte National Federation of Self Employed [1982] AC 617, 653. Indeed, there are good arguments for liberalising time limits and abolishing the leave stage as the Neill Report noted. But these proceed from principle and are thus unlikely to find much support with the current Lord Chancellor.