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The Criminal Justice and Courts Bill has now made its way through parliament. The bill originally contained wide-ranging reforms to judicial review, which were successfully watered down by the House of Lords, after substantial debate and ping pong.

The government hopes that the reforms will cut down the number of challenges to its decisions and has focused its justifications accordingly. In doing this, however, it has failed to consider the importance of judicial review to other independent organisations that carry out public functions. A key group of those are the professional regulators.

Professional regulators can be involved in judicial review in a variety of different areas. Firstly, and most commonly, judicial review is used to challenge decisions where there is no other appeal process. Secondly, there are judicial reviews which raise matters of importance to the profession, where the regulator becomes involved to ensure that the profession鈥檚 interests are protected. There is a concern that the reforms may discourage regulators from doing this, by making them liable for the costs arising from their involvement, despite their action being in the public and profession鈥檚 interest.

Judicial review can have a substantial costs impact on regulators who often have small budgets

There is no doubt that judicial review can be used to frustrate the process as the government contended. Take the case where the professional has a poor defence and is seeking to use a procedural issue to try to avoid dealing with the substantive issues. Professionals know that judicial review can have a substantial costs impact on regulators, who often have small legal teams and budgets, and even if the application is dismissed at the earliest possible opportunity, there are still costs for the regulator. Of course, in circumstances where the professional may well lose their livelihood and therefore face the prospect of bankruptcy, the threat of a costs order is of little deterrence.

However, although judicial review can be time consuming and costly for regulators, they can also derive substantial benefits from the system. The law is constantly evolving, and regulators鈥� processes must evolve with it. Regulators should aim to follow the principles of better regulation and best practice and therefore it is important for them regularly to review what they do and how they do it.

Judicial review, or even the threat of it, is an impetus to do this. For example, since 2009, the Architects Registration Board has had a third-party review system in place covering procedural issues in two of its committees - examination appeals and investigations. Applicants have 30 days to request a paper-based review, which is undertaken by a QC and a solicitor, identifying procedural issues. The committee/panel will then decide whether to accept the reviewer鈥檚 comments and recommendations. RICS undertook a major review of all their regulatory processes from 2005 to 2007 and undertook a review of their disciplinary processes last year.

Judicial review can also ratify a regulator鈥檚 systems. Take the example of a regulator which had been operating a policy for many years. The policy made a decision in favour of one class of people to the detriment of another, with the regulator being stuck in the middle - they had no benefit in favouring one side over the other, but just had to make a decision. The policy was based on a detailed legal analysis of the rights and wrongs of both sides, but there was no certainty that the legal analysis was correct and it was regularly challenged in expensive correspondence with parties. Finally, one of those parties issued a judicial review. Both the High Court and the Court of Appeal approved the policy, and the regulator successfully recovered a substantial proportion of its costs from the losing party. Now there is certainty and no expensive correspondence on the issue.

Of course, it is never possible for a regulator to be 鈥渏udicial review proof鈥�. A successful review is not necessarily a serious failing by a regulator and should not simply result in a blame game. Instead, it is essential that the regulator, and others, check and update their systems to avoid the issue in the future, and it must be made clear to everyone in the regulated community and the general public that this is what they have done. In this way, rather than being afraid of judicial review, or trying to restrict it, the regulator and its community and the general public should all derive reassurance in the long term that judicial review ensures that the regulation system is operating correctly. That is to everyone鈥檚 benefit.

James Dunn is a regulatory partner at Devonshires Solicitors. A special report is available: