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.” 1 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. 8 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. 9 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. 10 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) 11 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. 12