Judicial review plans are an attack on justice

The Government is burying the public consultation for drastic new rules limiting access to the courts over the Christmas period — don't let them away with it

'Most people reading this are not contemplating ever taking on the State or a public authority in court, but you know it is important the authorities know they can be held to account before our independent judiciary.' 

The State plans to take control over who can and cannot afford to hold them to account before the courts, and how effective a challenge they can bring to the lawfulness of decisions made. I’m not talking about some far flung authoritarian regime, I am talking about Ireland, and our Government, right now, in changes published on Wednesday in a public consultation they are trying to bury over the Christmas and New Year period.

This is a profound and deeply worrying shift on access to justice. It is further compounded as these changes provide for an entirely uneven playing field in court, as the lawyers acting for the State and large developer interests won’t be hit by the same cost restrictions.

Why does this matter to you? Most people reading this are not contemplating ever taking on the State or a public authority in court, but you know it is important the authorities know they can be held to account before our independent judiciary. 

If the people in power feel they won’t be held to account, there is a real risk to the quality of decision-making, and even worse, abuse of power. The UK’s guidance for public authorities, is aptly named 'The Judge Over Your Shoulder'. 

That image is a powerful reminder that as a public administrator, you should act as if a judge was indeed looking over your shoulder. Because ultimately, the lawfulness of your decision can be held to account before the courts. That potential oversight is compromised with these Government changes, undermining oversight by our courts.

The “consultation” published this week sets out the changes. To understand their impact, they need to be seen in the context of the way the system currently works.

The normal rule in court is “loser pays”. So if you challenge An Coimisiún Pleanála by seeking a judicial review of the lawfulness of one of its decisions, and you lose, traditionally you are exposed to paying its significant legal team costs, and typically also those of the developer of the project at issue in the decision.

Legal costs eye-watering

Legal costs in Ireland are eye-watering, and the highest in the EU. So, historically, you had to be a man of straw with nothing to lose, or one with deep pockets, to risk taking on cases, particularly where you had nothing to gain other than the wider public interest and protecting the environment.

To respond to EU law and Aarhus Convention requirements, and Court of Justice rulings against Ireland on how costs acted as a barrier to review of environmental decisions, Ireland eventually introduced special new cost rules for environmental cases in 2011. 

These meant you were not exposed to the other side’s costs if you lost. But you could be stripped of that protection in specified circumstances. Also, you could be awarded your costs if you were successful. This facilitated fee arrangements between lawyers and their less well off clients. Members of the public and environmental NGOs were able to take cases, as that costs award when you won was largely relied upon to pay your lawyers.

Now instead, Government plans to limit the award lawyers challenging decisions can win, and to limit the discretion of the court to vary that. However, those lawyers' costs may well be significantly higher than the award. So you could win your case for the public good, addressing inadequacies in the State's decisions, and still be left with a hefty legal bill to pay.

Nevertheless, the State parties and developers won’t be hit by the same fee restrictions when fighting you in court.

Attracta Uí Bhroin: 'Government is now burying these changes over the holiday period. That is a clear attempt to stymie effective engagement and scrutiny. This is deeply ironic given the Government argument that the changes are necessary for the public good.'

It’s a bit like me agreeing to a game of football with you, and then telling you I will effectively determine your team and how long they can play for, but I will be picking my team from the Premier League, without any budgetary restrictions.

Worse still, this change risks precipitating flight from the practice area. Without adequate representation in court, you won’t have access to justice. As it is, few lawyers who are capable of taking on the State and big developers in this complex area of law are prepared to work on the current arrangements.

The consultation includes a report setting out the rates being proposed in torturous detail, punctuated with admissions of the difficulties, and gaps in information to support it. It also relies on a similar approach in the UK without dealing with the issues with it there, and major structural differences here. 

It is important not to lose sight of the big picture. The change, however good or bad the rates may seem, and even if updated, means the State will now control the quality of your legal representation, and can change it with a flick of a ministerial pen. That is unacceptable.

Undoubtedly, review reform is needed on litigation costs in Ireland and to address what is driving judicial reviews. But this is not such a review or reform. The implementation of scale fees for the lawyers on the public side needs to be seen for what it is — an assault on the scales of justice. This risks a slide into yellow-pack justice, which will invariably be extended across other sectors. Legal arguments on these changes will cause delays to housing and infrastructure.

Further to Government’s massive orchestration and negative narrative around judicial review in the lead-up to this consultation, there has been push-back in more recent weeks by a number of commentators highlighting the contrary facts on judicial review statistics and the nature of these. 

Government is now burying these changes over the holiday period. That is a clear attempt to stymie effective engagement and scrutiny. This is deeply ironic given the Government argument that the changes are necessary for the public good.

The public engages on consultations in stolen moments in the evenings or weekends. Over Christmas and New Year, those times are long since committed to engagements with friends and families in the traditional holiday period, which remains very treasured and special in Ireland. Don’t let them also steal oversight by our courts, over your Christmas.

• Attracta Uí Bhroin is the manager and law officer of Environmental Law Ireland Initiative, hosted at An Taisce, the National Trust for Ireland, and a board member of the European Environmental Bureau. She is co-ordinating the Scales of Justice Ireland Campaign