The Law Commission

The Law Commission

(LAW COM.No.226)

ADMINISTRATIVE LAW: JUDICIAL REVIEW AND STATUTORY APPEALS





Item 10 of the Fifth Programme of Law Reform: Judicial Review

Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Commissioners are:

The Honourable Mr Justice Brooke, Chairman
Professor Andrew Burrows
Miss Diana Faber
Mr Charles Harpum
Mr Stephen Silber QC

The Commissioners who signed the report on 9 September 1994 were:

The Honourable Mr Justice Brooke, Chairman
Professor Jack Beatson
Miss Diana Faber
Mr Charles Harpum
Mr Stephen Silber QC

The Secretary of the Law Commission is

Mr Michael Sayers
and its offices are at Conquest House,
37 - 38 John Street,
Theobalds Road,
London, WC1N 2BQ.

CONTENTS

	Paragraph
PART I: INTRODUCTION AND SUMMARY	1.1
PART II: GENERAL CONSIDERATIONS
Public Policy	2.1 - 2.7
The European dimension in administrative law reform	2.8 - 2.11
Case-load pressure	2.12 - 2.14
The response on consultation	2.15 - 2.20
Developments since the publication of the consultation paper	2.21
Delay: the present position	2.22 - 2.27
Principles relevant to case-load issues	2.28
A duty to give reasons	2.29
Compensation in respect of ultra vires acts	2.32
PART III: PROCEDURAL EXCLUSIVITY
Procedural exclusivity and Order 53's provisions for leave, promptness and discretion	3.2 - 3.7
The rise and fall of the exclusivity principle	3.8 - 3.15
A procedure for transfer	3.16
Transfer out of Order 53	3.17 - 3.19
Transfer in to Order 53	3.20 - 3.21
A reference procedure	3.22
Transfer to the Crown Office list or certification of a case as "fit for a nominated judge"	3.23
Alternative remedies	3.24 - 3.26
PART IV: THE INITIAL STAGE
A new form 86A	4.3 - 4.7
A request for further information	4.8 - 4.11
Notification of the decision	4.12
PART V: FILTERING OUT HOPELESS APPLICATIONS: LEAVE OR PRELIMINARY CONSIDERATION	5.1
Written applications	5.9 - 5.12
Criteria for permitting an application to proceed to a substantive hearing	5.13 - 5.35
(i) An arguable case	5.15
(ii) Standing	5.16 - 5.22
(iii) Time limits	5.23 - 5.30
(iv) Exhaustion of alternative remedies	5.31 - 5.35
Reasons for not allowing an application to proceed to a substantive hearing	5.36
Respondent's consent to a substantive hearing of the application	5.37
Capacity to apply for judicial review	5.38 - 5.41
PART VI: INTERIM RELIEF
The present position	6.2 - 6.6
Principles on which interim relief is granted	6.7
Interim relief against the Crown in domestic cases	6.8 - 6.14
Interim relief prior to the decision to allow an application to proceed to a substantive hearing	6.15 - 6.17
The form of interim relief	6.18 - 6.24
Interim injunctions	6.19 - 6.20
Interim declarations	6.21 - 6.22
Stays	6.23
Third parties	6.24
Recommendation on the form of interim relief	6.25 - 6.27
Should the principles governing the availability of interim relief be set out in statute or the Rules?	6.28 - 6.29
Where primary or delegated legislation is impugned	6.30 - 6.31
PART VII: INTERLOCUTORY PROCEDURES
Introduction	7.1 - 7.3
Discovery and Interrogatories	7.4 - 7.12
PART VIII: REMEDIES
Nomenclature	8.1 - 8.3
Title of cases	8.4
Claims for Restitution and in Debt, and Interest	8.5 - 8.8
Advisory declarations	8.9 - 8.14
Power to make substitute orders	8.15 - 8.16
Discretionary denial of remedies	8.17 - 8.21
Prospective declarations	8.22
PART IX: RENEWED APPLICATIONS AND APPEALS
Renewed applications	9.1 - 9.2
Appeal against a refusal to allow an application to proceed to a substantive hearing	9.3
Setting aside an order permitting an application to proceed	9.4
Appeal from refusal to set aside an order permitting an application to proceed	9.5
Appeal from refusal of substantive applications for judicial review	9.7 - 9.9
PART X: COSTS
Costs on the leave application	10.2 - 10.3
The substantive hearing	10.4 - 10.5
Costs from central funds	10.6
Legal Aid	10.7
Types of legal aid	10.8
The test for obtaining legal aid	10.9 - 10.10
PART XI: HABEAS CORPUS
Functions of habeas corpus	11.1 - 11.2
Procedure	11.3
The response to Consultation Paper No 126	11.4 - 11.9
The scope of review in habeas corpus	11.10 - 11.20
Habeas corpus and interim relief	11.21 - 11.24
Appeals	11.25 - 11.32
PART XII: STATUTORY APPEALS
Introduction	12.1
Crown Office Rules	12.2
Statutory Appeals	12.3
Simplification to two procedures	12.4 - 12.5
Case stated	12.6 - 12.7
The High Courts' powers on appeals by way of case stated	12.8 - 12.10
Statutory Review	12.11
Judicial Review or Statutory Review	12.12 - 12.13
Systematisation of applications to quash	12.14
The High Court's appellate jurisdiction	12.15
Standing	12.17 - 12.18
Intervention	12.19
Time limits and power to extend time	12.20 - 12.22
Interim suspension and stay of orders pending appeal	12.23
Other interlocutory provisions	12.24
The orders which can be made on appeal	12.25
Should there be a leave requirement?	12.26
Allocation of business	12.28 - 12.29
PART XIII: SUMMARY OF RECOMMENDATIONS	13
APPENDIX A: Draft Administration of Justice Bill with explanatory notes and Draft RSC Order 53 with explanatory notes	A
APPENDIX B: Draft Forms	see PDF
APPENDIX C: Note on case-load management and statistics of case-load as at end of July 1994 - Annex 1 and 2	C
APPENDIX D: Time limits: EC Law and other jurisdictions	D
APPENDIX E: Model for statutory application to quash	E
APPENDIX F: List of those who responded to Consultation Paper No 126	F
APPENDIX G: List of papers presented at Robinson College and Institute of Advanced Legal Studies seminars and names of those who attended both	G

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