2011 Zone A Question 8
“The procedural restrictions on applications
for judicial review (such as sufficient interest
and “timeliness”) are necessary to strike the
correct
balance
between
governance
according to law and protecting public bodies
from unnecessary interference with their
work.”
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Introduction
• Explain the purpose for judicial review = to uphold the
rule of law:
– “The best indicator as to whether a country has the rule of
law is this: Can the ordinary person challenge a decision by
a public official (police, minister, planning authority and so
on) with a reasonable chance of redress if the decision is
unlawful? In countries under the rule of law, courts or
other tribunals are hospitable to such challenges and hear
them openly and fairly. Countries without the rule of law
stack the odds in favour of governmental decisions which
are difficult or impossible genuinely to question.” (Jeffrey
Jowell QC)
• If that be so, why are there procedural restrictions to
prevent citizens bringing judicial review proceedings
against the government?
2
Law
• Procedural Restrictions:
– Section 31 of the Senior Court Act 1981 (previously
known as the Supreme Court Act 1981)
• S.31(3): “No application for judicial review shall be made
unless the leave of the High Court has been obtained in
accordance with rules of court; and the court shall not grant
leave to make such an application unless it considers that
the applicant has a sufficient interest in the matter to which
the application relates.”
– Civil Procedure Rules 1998
• An action must be brought within 3 months of the decision
against which review is sought (or shorter, as specified by
statute).
3
Law
• Sufficient Interest/Locus Standi:
– R v IRC ex parte National Federation of Self‐Employed
and Small Businesses (1982):
• Lord Scarman (HOL): 2‐stage test.
– 1st stage: standing is considered when leave is applied.
– 2nd stage: standing can be revised when the merits of the case is known.
• Differentiate (by citing cases) between the ‘locus
standi’ test for:
– Individuals
– Group interests
– Interest groups
4
Law
• Other restrictions:
• Time Limitation Clauses?
– Courts are more likely to uphold time limit restrictions for
judicial review.
• Smith v East Elloe Rural DC (1956)
• R v SS for the Environment ex parte Ostler (1976)
• Exclusion of JR Clauses?
– Courts are very reluctant to surrender their jurisdiction
unless the exclusion clause is very clear and explicit.
• Anisminic v Foreign Compensation Commission (1969)
5
Arguments
• Procedural requirements should be abolished:
– JUSTICE‐All Souls Report (1988):
1.
The leave requirement is discriminatory (this is especially so with
“Interest Groups” where the courts exercise their power entirely
by discretion).
2.
The justification for leave based on eliminating “groundless,
unmeritorious or tardy harrassment” on the part of applicants
can be dealt with in the same manner as in ordinary litigations
(as provided by Rules of the Supreme Court – Order 18 Rule 19).
3.
The issue of standing is no longer determined with finality at the
stage of leave‐application. See ex parte National Federation of
Self‐Employed and Small Businesses (1982). The 2‐stage process
may be unfair and lead to costly legal proceedings that ultimately
discourages judicial review.
6
Arguments
• Procedural requirements should be retained:
– Law Commission (Administrative Law: Judicial Review
and Staturory Appeals – Consultation Paper No 226/HC
669):
• The procedural hurdles remain “essential to filter out hopeless
applications for judicial review by a requirement such as leave”.
• Also, rejections of leave can be appealed in the Court of Appeal.
– Reason?
• “The procedural restrictions on applications for judicial review
(such as sufficient interest and “timeliness”) are necessary to
strike the correct balance between governance according to law
and protecting public bodies from unnecessary interference with
their work.”
7
Arguments
• Latest reforms to further restrict JR may be a
threat to the rule of law:
– Jeffrey Jowell’s arguments:
• http://www.theguardian.com/law/2012/nov/19/diminishing
‐judicial‐review‐reverse‐legal‐progress
– What are the latest reforms?
• Clause 50 of the Criminal Justice and Courts Bill 2014
(amends s.31 SCA 1981):
– It provides, in part, that the High Court must refuse to grant relief
on an application for judicial review if it appears to the court to
be highly likely that the outcome for the applicant would not
have been substantially different if the conduct complained of
had not occurred.
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Arguments
•
When considering whether to grant leave to make an application for
judicial review, the High Court of its own motion may decide whether the
‘substantial difference’ principle applies, and must so decide if requested
to do so by the defendant. If the case goes to a full hearing, the court must
refuse to grant any remedy to the applicant if the outcome would not have
been substantially different had the public body acted according to law.
•
Clause 51 of the Criminal Justice and Courts Bill 2014
– Further requires that the applicant provide the court (or Upper Tribunal) with
information ‘about the source, nature and extent of financial resources
available, or likely to be available, to the applicant to meet liabilities arising in
connection with the application’.
– In relation to applications from corporate bodies, if they are unable to
demonstrate that they have the funds to meet any liabilities, they must
provide information about their members and their ability to provide financial
support for the purposes of the application.
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Latest Update:
• Clauses 50 and 51 of the Criminal Justice and
Courts Bill 2014
– Has been enacted as Sections 84‐85 of the
Criminal Justice and Courts Act 2015.
• Also take note of s.87 of the same Act. Court
do not automatically award costs for
“intervenors” (3rd parties) to bring in evidence
for JR proceedings.
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Arguments
• Axa General Insurance Ltd v HM Advocate [2011]
– “Judicial review under the common law is based upon
an understanding of the respective constitutional
responsibilities of public authorities and the courts.
The constitutional function of the courts in the field of
public law is to ensure, so far as they can, that public
authorities respect the rule of law. The courts
therefore have the responsibility of ensuring that the
public authority in question does not misuse its
powers or exceed their limits….” (per Lord Reed)
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Conclusion
• Reiterate the constitutional role of judicial review
and the need to strike the correct balance
between government according to law and
protecting the administrative process from
‘unnecessary interference’.
• The latest reforms may be an undue restriction of
judicial review rendering JR ineffective as a
mechanism to promote the rule of law and to
check on the arbitrary decisions of ‘public bodies’.
Instead of an effective check, judicial review may
be relegated to only a weapon of last resort.
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