Proposals for a “radical curtailment” of the judicial review system raise “serious constitutional concerns” and access-to-justice issues, the Bar Council has said.
The barristers’ representative body told an Oireachtas committee that limitations planned under the Department of Justice’s Civil Reform Bill appeared to go “far beyond restrictions in other common law jurisdictions”.
The Bill would impose “vague” and “exceptionally onerous” criteria on applicants in planning, asylum and immigration challenges, which could lead to “irrational, unreasonable and unlawful” decisions being upheld by the court “for the sake of administrative efficiency”, the council said in written submission.
Judicial review is a mechanism whereby individuals can ask the court to assess the lawfulness of a decision made by a public body, such as An Coimisúin Pleanála, the International Protection Office, the HSE or the Department of Social Protection.
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Published in early January, the Bill includes measures to place judicial review on a statutory footing and to overhaul its operation with the aim of making the process more streamlined and transparent.
At the time of its publication, Minister for Justice Jim O’Callaghan said judicial review reform could not be delayed as the State faced “significant challenges in terms of housing shortages, energy deficits, inadequate water supplies and climate changes”.
Key reforms would ensure the system could not be misused on “purely technical grounds” and that legal costs were reduced, he said.
Among the Bar Council’s complaints is the Bill’s imposition of extra criteria an applicant’s case must satisfy before the court can grant a remedy, which is typically an order striking down an unlawful decision.
Under the proposed changes, a challenger must not only prove the State respondent acted unlawfully, as is required at present, but must also demonstrate they have suffered personal harm due to the unlawful decision and would significantly benefit from a court remedy.
They must further show the interests of justice, including the public interest, compel the orders they seek.
Requiring applicants to satisfy the five new “vague” criteria was an “exceptionally onerous burden” that “appears to be designed to make it significantly more difficult to obtain relief in judicial review”, the Bar Council said.
It is already assumed to be in the interests of justice and the public to grant relief when a decision was unlawful, it also said.
The Minister said the changes would support the Government’s plan to accelerate infrastructure by removing barriers to development.
However, the reforms would apply to a broad range of judicial review cases, including asylum and immigration challenges, which have surged in recent years.
Last year there were 175 judicial reviews taken against decisions on asylum claims, up from 82 the year before and 57 in 2023. It follows a ramping-up of decision-making and deportation operations.
It was in this area of law that the Bar Council said the issue of access to justice was “particularly acute”.
There was no State legal costs assistance for people taking these and other human rights-related challenges, such as those related to citizenship or social welfare claims, so applicants must seek representation through private practitioners who usually operated on a “no win, no fee” basis, the council said.
Such arrangements incentivised lawyers to take only strong cases, it said.
The Bill proposes to award costs to a successful applicant only when the court’s decision would provide a “significant benefit to the applicant”. This is a significantly higher bar than the current practice of requiring the losing party to pay the winner’s legal costs.
The Bar Council said the requirement to demonstrate a “significant benefit” on top of proving a decision was unlawful would create “perverse incentives” for State defendants and raised access-to-justice issues.
Separately, Minister for the Environment Darragh O’Brien is attempting to introduce new caps on legal fees in judicial reviews taken on environment grounds against planning decisions.
