The Law Commission

PART I INTRODUCTION

1.1      In this report we make recommendations for reform of the procedures and forms of relief available in judicial review proceedings. It is the result of our examination of:

"the mechanism of judicial review, and the connected subject of statutory appeals and applications to quash made to the High Court from inferior courts, tribunals and other bodies"

under our fifth programme of law reform.^[1]

1.2      Our 1976 report on Remedies in Administrative Law^[2] paved the way for the modern procedure in Order 53 of the Rules of the Supreme Court (RSC). The procedural mechanisms put in place in 1977 and revised in 1980^[3] have had to be applied in the context of wide ranging changes in the scope of judicial review, both in terms of the substantive grounds for review and the numbers of applications for judicial review brought before the courts. There have been a number of calls for further reform in this field including those from the Committee of the JUSTICE-All Souls Review of Administrative Law^[4] and Lord Woolf,^[5] notably in his Hamlyn lectures in 1989. The development of the requirement that as a general rule claims for injunctions and declarations relating essentially to all public law matters must be brought by an application for judicial review (which we call the principle of "procedural exclusivity") has led to concern that needless litigation is generated over procedural issues, rather than the substance of a dispute.
1.3      In our programme we chose not to look at the substantive grounds for judicial review, which we believe should continue to be the subject of judicial development. The recommendations in this report are designed to ensure that continuing development of the grounds for judicial review is facilitated by an effective procedural framework.
1.4      In 1993 we published a consultation paper which reviewed the operation of the judicial review procedure and made a number of provisional recommendations.^[6] Our consideration of the issues was set against the background of three policy interests:

(i) the importance of vindicating the rule of law,

(ii) the need for speed and certainty in administrative decision-making and

(iii) the private interest of individual litigants in obtaining a remedy for their grievances.^[7]

It was also set against the need to take account of the requirements of European Community Law and our international obligations under the European Convention on Human Rights.

1.5      The first part of our consultation paper dealt with judicial review. We did not consider that fundamental changes were needed but sought to suggest improvements to the procedural system which had enabled and indeed facilitated the many developments since its introduction in 1977. Our provisional conclusions favoured broad access to the judicial review procedure and effective and flexible remedies, including interim relief against ministers and government departments, advisory declarations and the extension of the ability to combine private law monetary remedies with an application for judicial review. We made suggestions to reduce technicality including that resulting from the principle of procedural exclusivity. We favoured the retention of the requirement of leave to apply for judicial review but made a number of suggestions to improve its operation in practice. We were very concerned about the delays in applications for judicial review which, at the time our consultation paper was published, were approaching two years in cases for which expedition was not ordered. However, we believed that it would be wrong to narrow the rules governing the availability of judicial review solely to meet problems of delay.
1.6      In the second part of our consultation paper, dealing with statutory appeals, we considered whether there was scope for rationalising the great array of statutory provisions which give access to the High Court on appeal or by case stated or by application from the decision of an inferior court, tribunal or other body. Our examination of this area of the law and the issues discussed in that paper attracted wide interest and we received 147 written responses from the judiciary and legal practitioners, central and local government, interest groups and trade unions, regulators and ombudsmen, tribunals and academics. We were particularly grateful for the very full submissions from those with considerable experience of judicial review and other Crown Office proceedings and the large number of responses from local authorities and individuals working in local government. A list of those who responded to our consultation paper appears in Appendix F below.
1.8      Additionally, during the consultation period a conference to discuss our proposals was held at Robinson College, Cambridge and two seminars were held at the Institute of Advanced Legal Studies, London. A list of the papers presented at these meetings and those attending appears in Appendix G below. The consultation paper also attracted attention in the professional and academic periodical literature, some of which was based on material first presented at the conference and seminars.^[8] Meetings also took place with some of the nominated judges of the Queen's Bench Division, some of the Chairmen and Special Commissioners at the Combined Tax Tribunals Centre, representatives of the Legal Aid Board, the Lord Chancellor's Department, the Department of the Environment, the Head of the Crown Office and representatives of the Treasury Solicitor's Working Group which responded to the consultation paper.
1.9      The great majority of consultees welcomed and endorsed the general approach of the first part of the consultation paper and the public policy interests upon which we based our provisional proposals. There was, however, less support for rationalisation of the many statutory rights of appeal. In its Annual Report for 1992- 93, the Council on Tribunals stated that "the pursuit of uniformity for its own sake is undesirable" and that in "the absence of evidence that the difference in language [between the grounds of appeal from tribunals and challenges to administrative orders and decisions] has given rise to difficulties, we would not lightly interfere with the established grounds of challenge".^[9] In the light of these responses, we have only felt able to make very limited proposals in this area.
1.10      Since the publication of our consultation paper there have been a number of important developments. The most significant was the House of Lords decision in Re M^[10] that, in judicial review proceedings, ministers and government departments are subject to the contempt jurisdiction of the court and that interim injunctions can be made against them. There has also been a concerted attempt to deal with the problem of delay although as at the end of July 1994 there is still a projected waiting time of 12 months for hearings before a single judge after the respondents have filed their affidavit evidence in response to the application.
1.11      Another significant development is that we now have more information about the use and operation of the judicial review procedure. The Public Law Project published the first findings of its empirical study of access to and the use of judicial review.^[11] This inter alia indicated that the requirement of leave to move for judicial review is a significant filter but that it was being operated with considerable variation in approach amongst the judges during the period under review.^[12] It also identified the large number of cases^[13] that were withdrawn prior to reaching a substantive hearing. In the period of the study over 60% of homelessness cases were so withdrawn. This suggested that the present procedures, and the leave requirement in particular, operate as a disincentive to public authorities to review their decisions at an early stage with a view to reaching settlements with prospective applicants for judicial review. The study also confirmed what many experienced practitioners had known, ie that the "explosion" in the use of judicial review has been limited to two fields in particular, immigration and homelessness, and suggested that the limited use of judicial review in many areas in which it is potentially available may indicate that access to the procedure is a greater problem than is usually assumed.
1.12      Our main proposals for reform are:

The leave stage of applications should revert to being, as it was always intended to be, an informal stage of the procedure conducted almost entirely on paper.

The rules on standing should expressly refer to the public interest as well as to the applicant's link with the subject-matter of the case, so that it is clear that in appropriate cases applications may be brought by interest groups as well as by individuals adversely affected by an administrative decision.

The availability of interim relief against ministers and government departments should be put beyond doubt.

There should be a clear statement that the court has jurisdiction to make interim and advisory declarations in appropriate cases.

There should be a new provision on time limits replacing the present confusing and difficult provisions.

There should be provision for private law claims in debt and restitution to be available in judicial review proceedings. At present only awards of damages may be made in such proceedings.

A right of appeal to a court or independent tribunal in homelessness cases should be created.

1.13      We also recommend certain changes of nomenclature in order to make the function and nature of the prerogative orders clear to non-lawyers and to remove any perception that a citizen seeking judicial review is a mere supplicant. Thus, we recommend that prerogative relief should be granted by mandatory, prohibiting or quashing orders, rather than by mandamus, prohibition and certiorari^[14] and hat the filtering stage, the need for which we accept, should be called "preliminary consideration" rather than "leave". ^[15]
1.14      The rest of this report is arranged as follows:

Part II deals with a number of general considerations, including public policy, the European dimension and case-load pressure and management.

Part III discusses procedural exclusivity.

Part IV deals with the initial stage of an application for judicial review.

Part V is concerned with the filtering mechanism: it is here that we consider the preliminary consideration of applications, standing, time limits, and the exhaustion of alternative remedies.

Part VI considers interim relief.

Part VII looks at interlocutory proceedings, and in particular discovery.

Part VIII deals with remedies including substitution of an order by the court for that of an impugned decision and the availability of private law claims in debt and for restitution in judicial review proceedings.

Part IX considers renewed applications and appeals.

Part X looks at costs.

Part XI considers the writ of habeas corpus.

Part XII deals with statutory appeals.

Part XIII summarises the proposals for reform contained in Parts I to XII.

Appendices: A: - Draft Bill and Draft Rules; B: - Draft Forms; C: - Case-load management issues and statistics relating to Crown Office case-load as at the end of July 1994; D: - Time limits: EC Law and other jurisdictions; E: - Model for statutory application to quash; F: - List of those who responded to Consultation Paper No 126, G: - List of papers presented at Robinson Conference and Institute of Advanced Legal Studies seminars and names of those who attended both.

1.15      In our examination of this subject we have received valuable assistance from Sir Derek Oulton GCB, QC, who acted as our consultant, from John Avery-Jones and Richard Gordon QC for advice on statutory appeals, from Dr Christopher Forsyth and Professor Terence Daintith who organised the meetings at Robinson College and the Institute of Advanced Legal Studies, and from Lynne Knapman, Head of the Crown Office for her invaluable assistance in providing statistics. We are most grateful to them for their advice and help.

Note 1   (1991) Law Com No 200.    [Back]

Note 2   Report on Remedies in Administrative Law (1976) Law Com No 73.    [Back]

Note 3   SI 1977 No 1955; SI 1980 No 2000. See also Supreme Court Act 1981, s 31.    [Back]

Note 4   Administrative Justice: Some Necessary Reforms (1988).    [Back]

Note 5   Protection of the Public - A New Challenge (1990) (hereafter “Hamlyn lectures”), and “Judicial Review: A Possible Programme for Reform”, [1992] PL 221. See also “A Hotchpotch of Appeals - the Need for a Blender” (1988) 7 CJQ 44.    [Back]

Note 6   Administrative Law: Judicial Review and Statutory Appeals, Consultation Paper No 126.    [Back]

Note 7   Ibid, at para 2.3.    [Back]

Note 8   Among the articles published were: P Cane, “The Law Commission on Judicial Review” (1993) 56 MLR 887; C Emery, “Judicial Review and Statutory Appeals - Options for Reform” [1993] PL 262; M Partington, “Reforming Judicial Review: the Impact on Homeless Persons Cases” [1994] JSWFL 47; L Bridges, “The reform of judicial review” [1993] Legal Action, December, 7; J F Avery Jones, “Tax Appeals: the case for reform” [1994] British Tax Review 3; A Tanney, “Procedural Exclusivity in Administrative Law” [1994] PL 51; A Le Sueur, “Should we abolish the writ of habeas corpus?” [1992] PL 13; M Shrimpton, “In defence of habeas corpus” [1993] PL 24; “Improving the Effectiveness of Judicial Review” New Law Journal, January 29 1993, 119; “Summary of Law Commission Consultation Paper No 126: Judicial Review and Statutory Appeals” (1993) JP 157(7) 110; “Improving the effectiveness of judicial review” (1993) Bus LR 14(3) 67 - 68; “Reform of judicial review procedures” (1993) IBFL 1l(10) 112 - 113; A Watson, “Law Commission Consultation Paper No 126 on procedural reform of judicial review” (1993) Lit 12, 248; “Administrative Law: Judicial Review and Statutory Appeals: the main provisions of Law Commission Consultation Paper No 126” (1993) WL 4(5) 143 - 146; “Judicial Review: Comment & Current Topics” (1993) 137 SJ 56.    [Back]

Note 9   Para 1.55.    [Back]

Note 10   [1994] 1 AC 377.    [Back]

Note 11   M Sunkin, L Bridges and G Mészáros, Judicial Review in Perspective (1993) Public Law Project.    [Back]

Note 12   The Public LawProject data covers the handling of cases first initiated in three periods: 1987, 1988 and the first quarter of 1991.    [Back]

Note 13   Ie cases in which leave had been granted.    [Back]

Note 14   See paras 8.1 - 8.3 below.    [Back]

Note 15   See paras 5.6 – 5.8 below.    [Back]