The Law Commission

APPENDIX E

Statutory Appeals

STATUTORY REVIEW (APPLICATION TO QUASH) MODEL

XX.-(1) Any person aggrieved by an act or decision specified above (below) and who desires to question its validity on the ground-

(a) that it is not within the powers of this Act; or

...b) that any of the relevant requirements of this Act have not been complied with, may, within six weeks of the relevant date, make an application to the court.

(2) Where an application is duly made to the court under this section, the court

(a) (OPTIONAL) may by interim order suspend the act or decision either generally or in so far as it affects the applicant until the final determination of the proceedings and;

(b) if satisfied upon the hearing of the application-

(i) that the act or decision is not within the powers of this Act; or

(ii) that the interests of the applicant have been substantially prejudiced by any relevant requirements of this Act not having been complied with, may quash the act or decision either generally or in so far as it affects the applicant.

(3) Except as provided by this section, the validity of any of the acts or decisions specified above (below) shall not be questioned in any legal proceedings whatsoever.

(4) In this section, "the court" means-

(a) in relation to England and Wales, the High Court;

(b) (IF RELEVANT) in relation to Scotland, the Court of Session;

(c) (IF RELEVANT) in relation to Northern Ireland, the High Court.

(5) (OPTIONAL) Except by leave of the Court of Appeal or the High Court, no appeal shall lie from the High Court to the Court of Appeal in proceedings under this section.

MODEL STATUTORY REVIEW PROVISION NOTES

Standing (Subsection ( 1 ) )

1. Most respondents were in favour of the provisions for standing being made the same as those for judicial review, namely "sufficient interest". However, in the light of the recommendations made in paragraphs 5.22^[1] of this Report we recommend that the category of those with standing in statutory appeals remain "person aggrieved" unless the particular statutory context requires potential appellants to be identified more precisely.

Time limits

2. Most existing statutory review provisions specify a period of six weeks (or 42 days) for applications to quash to be made. In view of the fact that in almost all Acts noted so far applications to quash are strictly limited to the time period specified, prima facie the time limit for making applications should be as long as is consistent with the public interest^[2]. Six weeks should be the time period, except where the public interest in certainty demands that a shorter period be specified. (This might be so, for example, in planning applications).

When time should start to run (Subsection (1))

3. Different statutes specify that time should run

(i) from the date of the first publication of the notice (of the order) (in the London Gazette)

(ii) from the date the order becomes operative (e.g. under the Statutory Orders (Special Procedure) Act 1945)

(iii) from the date the decision is made

(iv) from the date the order is confirmed (if it is of a type which needs confirmation to become operative)

(v) from the date a copy of the statutory instrument containing the order is laid before Parliament

(vi) from the date on which the act was done

(vii) from the date of service on the applicant of a copy of the order under challenge (only where standing is limited(b)).

4. One possible formulation for a standard rule in statutory review would be the formulation in Order 53, rule 4(2), which specifies when time starts to run for certiorari. Where a quashing order is sought in respect of any judgment, order, conviction, or other proceeding, time runs from the date when grounds for the application first arose. This would, however, be rather unwieldy. We propose that the model should merely state, as at present, that time should run from the relevant date, and leave the individual Act or rules to list or specify the appropriate date. Interim Suspension (Subsection (1)(a))

3. Some statutory review provisions allow for interim suspension of the act or decision in question until the final determination of the application. Other procedures for the making of orders specify that they do not come into effect until after the 28 day period for challenge has expired. The variety of circumstances in which orders subject to statutory review can be made means that it is not possible to state whether interim suspension should be universally available or not.

Procedural v Substantive Ultra Vires (Subsections ( l ) ( b ) & (2)(b)(ii))

6. The ground in draft subsection (l)(a) is normally known as "substantive Ultra vires"; the ground in (l)(b) as "procedural ultra vires". The classic formulation of the extent of the former was given by Lord Denning MR in Ashbridge Investments Ltd v Minister of Housing & Local Government [1965] 1 WLR 1320, 1326, where it was held to include "no evidence", "unreasonableness", "wrong interpretation [of] the words of the statute", or taking into consideration matters which ought not to be taken into account, or vice versa. "It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law". This formulation suggests that substantive ultra vires encompasses all the heads of challenge under the modem judicial review procedure, and that procedural ultra vires is a subset of it^[3].

7. Procedural ultra vires is still treated, however, as an independent basis of review, despite questions of whether it is subsumed into substantive ultra vires, and confusion over the extent to which the two grounds overlap^[4]. The position is further confused by the fact that some review provisions omit any reference to the substantial prejudice requirement normally imposed on the procedural ultra vires provision^[5]. It seems likely that procedural ultra vires provisions are intended to be concerned with 'directory' requirements of a statute, while substantive ultra vires provisions are intended to refer to mandatory requirements (neglect of which renders an order null and void). The procedural ultra vires provision has been retained in order to ensure that no rights to bring review applications are lost.

The Scope of the Power in "procedural ultra vires" (Subsection (l)(b)(ii))

4. Some of the provisions examined allow review if any requirement under a certain section has not been complied with. Others allow it if a "relevant procedural" requirement has not been complied with. We favour a model provision merely having "relevant requirement". The court will be best placed to determine whether there are substantive grounds for the application.

The Scope of the quashing order (Subsection (2))

5. Some of the provisions allow for the act or decision under challenge to be quashed only in so far as it affects the applicant, if the court so directs. Others merely state that the court may quash the act, decision or order. In many cases, however, the act, decision or order being quashed will only relate to the applicant (for example, decisions affecting only a large landowner). It would seem sensible to allow the court discretion to quash as it sees fit in all the circumstances, as it will be in a position to hear argument on what the best remedy is. (For example, a Government department could be represented, joined to the respondent if not already the respondent, and argue that the scope of the quashing should be limited, in the wider public interest.)

Ouster Provisions (Subsection (3))

6. Ouster provisions are almost universal in statutory review provisions. Two provisions^[6] specify additionally that the order made is not to be questioned by prohibition or certiorari. These extra restrictions are unnecessary, especially in view of recent caselaw,^[7] and it is notable that they are not used in recent formulations. It is accepted that the public policy interest in certainty, coupled with wide powers to quash the decision for even directory breach, justifies the existence of an ouster provision.

Leave to appeal (Subsection (5))

11. Some statutory review provisions contain a leave requirement for appeals to the Court of Appeal. Most do not. Without further research it would not be possible for a model provision to state that such a requirement was or was not justified. Responses to our consultation did not constitute a significant body of opinion either for or against a leave requirement.

Note 1   See also paragraphs 12.17 - 12.18 above.    [Back]

Note 2   The Coroners Court Act 1988, s 13, contains the only statutory review provision so far examined which does not specify six weeks as the period for making applications. No provision as to time is made in the Act. However, the provision on standing limits applications to those made “by or under the authority of the Attorney-General”. In such circumstances there is no danger of the court’s procedures being abused by vexatious litigants    [Back]

Note 3   See Gordon, Crown Office Proceedings, para G1-015    [Back]

Note 4   See eg Gordondale Investments Ltd v Secretary of State for the Environment (1971) 70 LGR 158, 167, per Megaw LJ.    [Back]

Note 5   See eg the Cycle Tracks Act 1984, s 3(6).    [Back]

Note 6    Forestry Act 1967 (compulsory purchase), and Coast Protection Act 1949.    [Back]

Note 7   R v Cornwall CC, exp Huntington [1994] 1 All ER 694 (CA).    [Back]