This is just to add to the many excellent posts regarding proposals to reform judicial review. Just for those who are unaware of what judicial review is, Mr Justice Simon Brown in R v HM the Queen in Council, ex parte Vijayatunga [1988] QB 322 succinctly noted that ‘judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law.’ The Government would do well to remember this when considering changes or reforms on access to the courts.

As the Ministry of Justice website notes, ‘[c]ostly and spurious review cases which clog up the courts, delay justice and place a heavy burden on the tax-payer.’ This is said without making reference to any monetary figure or any examples of ‘spurious review,’ of course, indeed there may well be unsavoury claims, but this is not limited to judicial review. There is no indication on how money may actually be wasted and no prediction regarding savings these proposals might achieve. What these proposal reforms fail to acknowledge is what Mrs Justice Lang in Saha v Imperial College of Science, Technology and Medicine [2011] EWHC 3286 (QB) at 28 noted that ‘[i]t is a well-established principle that judicial review is a remedy of last resort and, therefore, the Administrative Court is entitled, in its discretion, to refuse permission where a [claimant] has not exhausted his alternative remedy…’ Such emphasis can be seen in cases such as R v Peterkin, ex p Soni [1972] Imm Ar 253, R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720, Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 ALL ER 705. But this stance is not absolute noted in R v Chief Constable of Merseyside Police, ex p Calveley [1986] 1 QB 424 and R v Leeds City Council, ex p Henry (1994) 6 Admin LR 439.

Just recently in relation to ‘spurious review’ in Hamid, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) the President of the Queen’s Bench Division at para 10-11 robustly stated that:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

That is a warning for the future. We hope it will be unnecessary to have to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court’s requirements.

And in relation to delays his Lordship quite rightly stated that at para 8 that ‘if reasons are not properly set out or do not explain why there has been delay or the reasons are otherwise inadequate, the court may simply refuse to consider the application for that reason and that reason alone.’

Mr Grayling argues that ‘…there has been a huge growth in the use of judicial review, far beyond what was originally intended.’ Just what exactly was intended when judicial review was in its infancy? The expansion of judicial review is a direct result of increasing state interference. Where Leyland et al 2008 at p 213 summarises the emergence of judicial review as ‘after WWII the government became increasingly invasive in areas which it had not previously done so, thus increasing in size and responsibility thus major modifications were made to the tribunal system as a result of the Franks Report 1957 and the Tribunals and Inquiries Act 1958. Such pressures led to the Parliamentary Commissioner for Administration in 1967, such instances were maintained by landmark decisions of the HL which brought about the basis for the body of judicial review.’

From as early as the 1920s Lord Atkin in R v Electricity Commissioners, ex p London Electricity Joint Committee (1920) [1924] 1 KB 171 famously stated that:

‘Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench…’

All this would suggest is that the judiciary are reactive (perhaps sometimes proactive) to when the government finds new ways to govern individuals under its jurisdiction.

In relation to reducing time limits, the Civil Procedure Rules 54.5 notes:
(1)The claim form must be filed –
(a)promptly; and
(b)in any event not later than 3 months after the grounds to make the claim first arose.
(2)The time limit in this rule may not be extended by agreement between the parties.
(3)This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.

In regards to ‘promptly’ the Senior Courts Act 1981 s.31(6)(a) the court may refuse to grant leave or remedy s.31(6)(b) if there has been ‘undue delay in making an application for judicial review.’ Therefore, the applicant should make a claim as soon as reasonably possible and there may be consequences for not doing so. Lord Steyn in R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593 (HL) at para 53 said as much that ‘in regard to truly urgent cases the court would in any event in its ultimate discretion or under section 31(6) of the 1981 Act be able to refuse relief where it is appropriate to do so.’

The courts may extend the time period according to the Senior Courts Act 1981 s.31(6) if it ‘would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.’ As seen in R v Sec of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386 an action was allowed nearly 3 years after the initial decision because the importance of the issue and because some relevant evidence emerged only at a late stage.

What is also essentially important and should not be overlooked is what was asserted in Craig, Administrative Law 4th ed at p 794 was that:

‘The short time limits may, in a paradoxical sense, increase the amount of litigation against the administration. An individual who believes that the public body has acted ultra vires now has the strongest incentive to seek a judicial resolution of the matter immediately, as opposed to attempting a negotiated solution, quite simply because if the individual forbears from suing he or she may be deemed not to have applied promptly or within the three month time limit.’

Shortening the time limit for judicial review may have the unintended consequence of defeating the idea that the court is a last resort and may render other accessible remedies redundant. Where there is haste, there may also be waste, with the aim of creating more cost effective procedures these reforms could actually hinder justice by way of rushed and defective decisions which in turn would actually create further delays. A more cost effective judicial process is good, but an efficient judicial process is better.

In R v Lord Chancellor, ex p Witham [1998] QB 575 the Lord Chancellor sought to change policy that excepted those on income support from paying court fees, this changed was contained in the Supreme Court Fees (Amendment) Order 1996 on the basis of s.130 of the Supreme Court Act 1981 – which gave the Lord Chancellor general powers to prescribe fees. Laws LJ noted this was ultra vires as:

’Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case.’

Laws LJ quite rightly states that access to the courts is a constitutional right, but what is worrying about this sentiment is that it implies that Parliament can waiver them. This could obviously add to the constitutional tangle between the judiciary and Parliament. But realistically, this would seemingly not succeed considering that previous governments have failed to restrict the court’s jurisdiction with the dubious ouster clauses. In R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574 The claimant wanted to challenge the amount of compensation he received for a work related injury from the Medical Appeal Tribunal via quashing order (certiorari). The court held that such a clause prevented an on fact or law, it did not prevent judicial review (Leyland et al 2008 p 394 and Webley 2009 OUP). Denning added ’…the courts never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.’ This is also illustrated by older cases such as R v Cheltenham Commissioners [1841] 1 QB 467. where Lord Denham CJ said ‘The statute cannot affect our right and duty to see justice executed.’

But cases such as the ones above were in relation to curbing the courts own jurisdiction. The government has and successfully used what is termed a ‘time clause’ (which could also be argued to curb the court’s jurisdiction) which may for all due purposes have the same effect as reducing the time limit to bring a claim for judicial review. And this is where the danger might lay for access to justice for the courts are reluctant ignore. This is seen in Smith v East Elloe Rural District Council [1956] AC 736 which concerned a challenge to a compulsory purchase order under the Acquisition of Land (Authorisation Procedure) Act 1946, Sch 1 Part IV. The Act allowed the court to quash acts of ultra vires as long as there was substantial prejudice to the applicant, however the statute noted that any challenge must be made within a six week period of the order being made if not the compulsory purchase order ‘shall not be questioned by any legal proceedings whatsoever.’ It was not until 5 years after the fact that Mrs Smith made a claim. The Lordships concluded they could not quash the order, but unanimously held that Mrs Smith’s claim could proceed on grounds of bad faith. But even in this case Lord Radcliffe described the six week time limit as ‘pitifully inadequate.’ Dissenting Lord Somervell believed that the ‘limited right under paragraph 15, therefore, does not apply to applications based on bad faith.’

But the strength of time clauses have subsequently been approved in R v Secretary of State for the Environment, ex p Ostler [1976] 3 AII ER 90, R v Secretary of State for the Environment, ex p Kent [1990] COD 78, and in R v Cornwall County Council, ex p Huntington [1994] 1 All ER 694 Mann LJ stated that:

‘The intention of Parliament when it uses an Anisminic clause is that question as to validity are not excluded…[W]hen paragraphs such as those considered in ex p Ostler, ex p are used, then legislative intention is that questions as to invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but otherwise the jurisdiction of the court is excluded in the interests of certainty.’

But as Lord Atkin’s stated in at 361 Ras Behari Lal v King-Emperor (1933) 60 IA 345 that ’[f]inality is a good thing, but justice is a better.’ R v Wiltshire County Council, ex parte Nettlecombe Limited [1998] JPL 707 has however been distinguished from Huntington.

Wade and Forsyth (2000, p 712) have suggested that clauses of this kind may invoke Article 6 arguments as they may impede on the granting of a judicial remedy.

This may have an unintended consequence for the government, if the courts are reluctant to ignore a time clause, they may be forced to issue a sec.4 HRA 1998 declaration of incompatibility. In Hobbs v UK [2002] App. No 63684/00 the ECtHR held that a declaration of incompatibility is not a sufficiently effective remedy for the purposes of the Convention and in Burden v UK [2006] Application No 13378/05 the ECtHR confirmed that applicants who’s only remedy is a declaration of incompatibility may not be required to make a claim in national courts and in 2008 the Grand Chamber ruled that declarations are still ineffective and only improvements would make the Court reconsider. This may result in applications going straight to Strasbourg to challenge time limits. Would the government then argue more about the interference by the ECtHR?

Challenges have come before the ECtHR before as in the case of Stubbings and Others v UK 36-37/1995/542-543/628-629 although the applicants Article 6 claim failed, the court notably stated at para 50:

‘In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’

One could only speculate at such a situation occurring. But this line of thinking makes clear, that time limitations must be carefully considered, and legitimately proportionate if such proposals were to ever go forward.

The Court albeit on Article 3 grounds in Jabari v Turkey Appl. No. 40035/98 held that:[the] automatic and mechanical application of a short [five day] time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention.

As Wade et al might suggest that a time clause may hinder an effective remedy, a two judge led dissent from Strasbourg in the case of Vilvarajah and Others v. The United Kingdom 45/1990/236/302-306 argued that judicial review itself is not an effective remedy:
‘PARTLY DISSENTING OPINION OF JUDGE WALSH JOINED BY JUDGE RUSSO:
3. It appears to me that a national system which it is claimed provides an effective remedy for a breach of the Convention and which excludes the competence to make a decision on the merits cannot meet the requirements of Article 13 (art. 13).’

What also needs to be remembered about any Article 6 challenge is that it is only engaged ‘[i]n the determination of his civil rights and obligations…’ As shown by Christopher Hood and Ruth Dixon (Item 7) the majority of JR applications are regarding immigration, it is assumed this includes asylum issues also, but therein lies the danger or trying to invoke an Article 6 argument on a time clause as in the case of Vilvarajah at para 102 (mentioned above) the Court held ‘that the right to political asylum is not contained in either the Convention or its Protocols. This is borne out by several recommendations of the Assembly of the Council of Europe on the right of asylum.’ Which has been confirmed by the Council of Europe at p 9 nor is it even guaranteed by the Refugee Convention (Article 1(2). And in T v Secretary of State for the Home Department [1996] AC 742, 754, Lord Mustill said:

‘…although it is easy to assume that the appellant invokes a ‘right of asylum’, no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries.’

The Council of Europe at p 38 have also noted that ‘…Article 6 does not apply to expulsion cases. This is because the right to protection from expulsion is seen not as a civil right but as an act of public authorities governed by public law.’

UNHCR noted at para 6:

‘Sacrificing key procedural safeguards and/or setting short time limits for the examination may result in flawed decisions which will defeat the objective of an efficient asylum procedure, as they may prolong proceedings before the appeal instance.’

It appears that Mr Grayling has not thought about this idea of reforming judicial review thoroughly, because the very purpose of reform, is to better something, but in order to do that, one has to look at existing weaknesses, there is no mention of how the Civil Procedure Rules or anything for that matter might be failing or how it could be improved, or even why it might be failing. This is not to argue that judicial review is faultless, but in order to make change, inadequacies must be identified and evidenced and then any necessary proposals which have considered the potential implications and consequences made thereinafter.

Any significant change to that system must be supported by evidence that it really isn’t working and that the proposals will really address its deficiencies. Anything less risks making public authorities less accountable to the public they serve.

What are your suggestions?

I also highly recommend this post from Nearly Legal which takes a different but still critical approach.

“It is common ground that the court’s power in respect of this claim is one of review only”

Keenan v UK [ECHR] Para [73] further emphasises the limitations of the Judicial Review process in respect of an effective public remedy (Article 13 -ECHR) thus:

“However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority”

Granted JR’s are appropriate in some cases, however they are clearly not appropriate in many cases. Cameron should be expanding the remit of JR as opposed to reducing it.

Miguel Cubells