19 November 2013 by Eugene Suggett
The Government via the Ministry of Justice is proposing to limit or curtail the extent to which non-governmental organisations (NGOs) like the Ramblers can bring judicial review proceedings.
Judicial review is the means by which someone can apply to the Administrative Court (a branch of the High Court) for a judge to rule on whether a public body such as the government, or a council, has acted within its powers or applied the law correctly in doing so. If the court finds that they have not done so, it can quash whatever decision the public body took.
Some of those proposing curtailment of our right to bring judicial review have alleged that “judicial reviews are brought by groups who seek nothing more than cheap headlines”, and are objurgating NGOs for using judicial review “to delay, frustrate or discourage legitimate executive action,” and to object to lawful policies and projects. The proposals are causing no little inquietude among those NGOs who use judicial review for its legitimate purpose (and you can read our response to the consultation).
The Ramblers’ occasional use of judicial review has been not to undermine the will of Parliament but to assert or reassert it.
Eighty-odd years ago there was enacted the Rights of Way Act 1932, which put on a statutory footing the principles by which right of way come into existence through long usage, so that those claiming them no longer had to rely on the arbitrary rules of common law. The provision continues to exist in section 31(1) of the Highways Act 1980. But just before the close of the old century, two judges in different cases put the boot firmly in to the way the law operates, making it so easy to defeat a claim as to undermine the fundamental purpose of the legislation.
To put that right, we had to await the decisions of a couple of Inspectors at public inquiries which had turned on that very point. One was about a footpath at Monk’s Pit, Godmanchester, Cambs; the other was about a path in the parishes of Aldworth and Streatley, Berks. The matter ended up in the House of Lords (the then Supreme Court), where the law lords all agreed with us that it would “make nonsense of the Act” if the judges in the courts below were right. So now the law (as enacted by Parliament) is back in working order, which without judicial review it wouldn’t be.
In another matter, Councils and Inspectors were interpreting in very different ways exactly how a certain provision within the law to do with adding rights of way to definitive maps. It concerned the correct meaning of the words “reasonably alleged”, in section 53(3)(c)(i) of the Wildlife and Countryside Act 1981. The widespread inconsistency meant that injustices were being done.
So when our member Gordon Emery applied for a path to be added to the definitive map and his application was rejected on grounds which made no sense, we sought judicial review. There was no other means of correcting the matter. So it was that in Regina v Secretary of State for Wales ex parte Emery (1998) the Court of Appeal clarified a confused area of the law.
I do not recall that either of these cases generated “headlines”. If it did, they were not “cheap” ones, since judicial review does not come cheaply (you don’t get all your costs back even if you win). And if you wanted to interest the papers in your organisation’s work, wouldn’t you choose some other hook than the meaning of the words “reasonably alleged” in section 53(3)(c)(i) of the Wildlife and Countryside Act 1981?
Eugene Suggett is the Ramblers' senior policy officer. Find out more about his work and read his previous blog posts.