DO YOU THINK the government and public bodies always get everything right? Or do you think that sometimes, they make bad decisions that should be exposed and corrected?

‘Judicial review’ has been much maligned recently, frequently cited by the government as a barrier to delivering key infrastructure and housing.

The last government significantly limited access to judicial review in planning and environmental matters under the Planning and Development Act 2024. The new Civil Reform Bill, which is currently before the Justice Committee, aims to extend restrictions on judicial review across the board.

Everyone should be concerned by these proposals. While there has been much talk about court challenges in relation to planning, less discussed is the fact that judicial review is often the final backstop on the power of the State in many areas of public life.

We should not allow government to use its own failure on tackling the housing crisis as a smokescreen to push through broad restrictions on access to justice.

What is judicial review?

Judicial review allows ordinary people to ask the High Court to review decisions of public bodies that they think are unlawful.

Much of the need for judicial review stems from a lack of fair and transparent procedures in public life. For example, there is no statutory appeals process if a person is refused homeless accommodation or suitable social housing. Independent law centres such as ours at Community Law & Mediation (CLM) have brought many judicial reviews to force public bodies to back down from utterly wrong and unlawful refusals to provide housing supports, including in cases involving homeless women and children fleeing domestic violence.

Judicial review can also be the last resort if a public body simply won’t do something they are obliged to do, such as an HSE failure to conduct timely disability needs assessments for children.

Judicial review also benefits society by changing unlawful and unfair practices. One example is a judicial review taken by one of our clients, an unemployed mother ordered to prison by the District Court after falling into arrears on a loan of €18,000. As a result of this case, it is no longer lawful to imprison people because they are unable to pay their debts.

These types of cases have nothing to do with building houses or infrastructure, but will be swept up in the restrictions proposed under the Civil Reform Bill.

What is government proposing to change?

Bringing a judicial review is difficult. There are very particular criteria, and you must apply to the court for permission to bring the case. You must bring your case within 12 weeks of the ‘decision’, even though it is not always clear when a final decision has actually been made or why – perhaps the local authority just stopped responding to your calls and emails.

You might need to make a Freedom of Information request to access your files, a process which can take four weeks or more. If you can’t afford a lawyer, you can apply to the Legal Aid Board, but waiting lists can be substantially longer than 12 weeks, or you can contact an independent law centre, but these are massively oversubscribed and under resourced.

You also need a barrister to draft legal papers. And in the meantime, you are expected to try to resolve the issue directly with the public body before going to court as a last resort. All in 12 weeks.

This is already extremely challenging for ordinary people who don’t have lawyers on speed dial. The additional restrictions proposed in the General Scheme of the Civil Reform Bill will make it nearly impossible for many.

One proposed change is to cut the 12-week period to just eight weeks. No explanation was given for the need to reduce the already-short window. It is inevitable that worthwhile cases will fail because they simply can’t take all these steps in time.

Other proposals include increasing the threshold to get permission to bring a case or to get relief in a successful case; again, no evidence has been provided on the need for these changes.

What could government do instead?

Submissions made to government on the Civil Reform Bill, including by CLM, have pointed out the obvious pitfalls with these proposals. As no reason or evidence has been given to justify the changes, it is difficult to avoid the conclusion that the intention is to reduce the number of cases brought against the State, regardless of merit, by making the process harder.

Blocking cases from reaching the courts through procedural hurdles is not a solution to deep-rooted problems of poor decision making and under-resourced courts. If government is concerned that there are too many successful judicial reviews, an alternative solution might be to examine why so many bad decisions are made by organs of the State.

In the context of planning, the CEO of An Coimisiún Pleanála recently outlined how they have significantly reduced the rate of judicial review against planning decisions by increasing their capacity and by taking simple steps like reviewing cases they lose to ensure they don’t repeat the same mistakes. Investment in the courts would speed up cases while improving, rather than limiting, access to justice.

Weakening judicial review will not improve government efficiency. Restricting the public’s right to hold the State to account risks entrenching poor decision making and a lack of accountability.

Instead, the government’s focus should be on ensuring lawful, fair and rational decision making by public bodies, supported by robust and transparent appeals systems and well-resourced courts that can deal with cases promptly as a last resort.

Aoife Kelly-Desmond is the CEO of Community Law & Mediation, an independent community law centre and charity, established in 1975 as the first community law centre in Ireland as part of the campaign for civil legal aid.

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