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The Law Commission and Judicial Review: Principle Versus Progmatism

Published online by Cambridge University Press:  16 January 2009

Ivan Hare
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Extract

IT IS now 18 years since the Law Commission Report which led to the introduction of the reformed R.S.C., Order 53,1 the procedure which still governs all applications for judicial review in England and Wales. The Law Commission has now returned to the field with its 1994 Report entitled Administrative Law: Judicial Review and Statutory Appeals.2 During the interval between the two reports, judicial review has undergone enormous change in terms of both thequantity of claims brought3 and the substantive and adjectival developments in the jurisprudence. Moreover, important additions to the reform agenda have been made from a variety of sources.4 The Law Commission's latest contribution could thus hardly be better timed.

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Shorter Articles
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The Cambridge Law Journal , Volume 54 , Issue 2 , July 1995 , pp. 268 - 279
Copyright
Copyright © Cambridge Law Journal and Contributors 1995

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References

1 Report on Remedies in Administrative Law (1976) Law Com. No. 73. Parts of the Order 53 reforms were consolidated in section 31 of the Supreme Court Act 1981.

2 The Report (No. 226) follows the issue of a Consultation Paper (No. 126) with the same title in 1993. References below are to the Report unless otherwise indicated.

3 Applications for leave to move for judicial review increased from 525 in 1980 to 2886 in 1993. This has been reflected in the allocation of judicial resources to the Crown Office List from which judges who hear judicial review cases are drawn (para. 2.21). The increased pressure on the Crown Office List was recognised judicially in R. v. Newcastle under Lyme Justices, ex parte Massey [1994] 1 W.L.R. 1684.

4 For example, JUSTICE-AH Souls' Administrative Justice: Some Necessary Reforms (Oxford 1988);Google ScholarWoolf, Lord, Protection of the Public—A New Challenge (London, Stevens 1990)Google Scholar and “Judicial Review: A Possible Programme for Reform” [1992] P.L. 221; Sunkin, Bridges and Meszaros, , Judicial Review in Perspective (Public Law Project 1993).Google Scholar

5 , Jowell and Lester, , “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] P.L. 368;Google ScholarBoyron, , “Proportionality in English Administrative Law: A Faulty Transplant?” (1992) Oxford J. Legal Stud. 237.Google Scholar

6 The European Court of Justice stressed the importance of reasons being given in order that meaningful judicial review may occur in Union Nationale des Entraineurs et Cadre Techniques Professionels du Football v. Heylens [1989] 1 C.M.L.R. 901. On compensation under E.C. law, see Francovich v. Italian Republic [1993] 2 C.M.L.R. 66 and Faccini Dori v. Recreb S.r.l. [1995] All E.R. (E.C.) 1.

7 The Judicial Review Act 1991 in Queensland is principally procedural in its effects but underlines the interrelation of the two issues by providing a requirement that reasons be given for administrative decisions. Our Law Commission's Report is remarkable for the paucity of its references to other jurisdictions.

8 See Cane, , “The Law Commission on Judicial Review” (1993) 56 M.L.R. 887.Google Scholar

9 The JUSTICE-A11 Souls' report, note 4, supra, recommended codification of the grounds of review and this was the option chosen (on the recommendation of the Law Commission of Australia) in the Administrative Decisions (Judicial Review) Act 1977.

10 For example, Craig, Public Law and Democracy in the U.K. and the U.S.A. (Oxford 1990);Google ScholarLoughlin, , Public Law and Political Theory (Oxford 1992)Google Scholar and Allan, , Law, Liberty, and Justice (Oxford 1993).Google Scholar

11 Oliver, , “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] P.L. 543;Google Scholar The Justice Laws, Hon. Mr., “Illegality: the problem of jurisdiction” in Supperstone and Goudie (eds.), Judicial Review (Butterworths 1992);Google ScholarWade, , Constitutional Fundamentals, 2nd ed., (London 1989);Google Scholar Sir Robin Cooke, “The Struggle for Simplicity in Administrative Law” in , Taggart (ed.) Judicial Review of Administrative Action in the 1980s (Oxford 1986),Google Scholar Woolf, “Droit Public—English Style” [1995] P.L. 57.

12 Paras. 2.1–2.7.

13 Para. 8.16. At common law the court's powers of review for error of law do not include a power of substitution. However, the court's authoritative determination of an issue of law will involve an effective substitution of the court's interpretation of the term in question (R. v. Lord President of the Privy Council, ex parte Page [1993] A.C. 682).

14 This proposal is all the more surprising when read with the following paragraphs of the Report which affirm the distinction between the appellate and supervisory jurisdictions. Para. 8.18 states:

“…we consider it important to state that we consider that it is normally incompatible with the court's reviewing function for the merits of a case to be taken into account in exercising discretion whether to grant relief or not.” In its defence, the Commission would probably emphasise its use of the term “normally”.

15 See Wade and Cooke, note 11, supra.

16 Moreover, if the separation of powers is the chosen justification, the Commission should not have had to toy long with the idea of farming part of the judicial review caseload out to the County Court (para. 2.13 and Appendix C (paras. 6.1–6.3 and 8.23)). The Commission's view (although not the separation of powers argument in support of it) could apply equally to errors of fact by an inferior body yet the Commission produces no satisfactory explanation for treating law and fact differently.

17 Woolf, , “Judicial Review: A Possible Programme for Reform” [1992] P.L. 221 at 221.Google Scholar

18 Appendix C. These figures are significantly better than those of previous years.

19 The Commission proposal which would most obviously reduce the judicial review case-load is that advocating the creation of right of appeal to a court or independent tribunal in homelessness cases (para. 2.26).

20 [1983] 2 A.C. 237.

21 It was described by Lord Lowry in Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC. 624 at 653H, as “a procedural minefield”. Sir Michael Kerr has stated that “… our law … has already suffered too much from the undesirable complexities of this overlegalistic procedural dichotomy” in Lonrho p.l.c. v. Tebbit [1992] 4 All E.R. 280 at 288H.

22 Henry J. suggested that the reason for this confusion is that “… the circumstances in which there may be such a mixture of public and private law claims are infinitely various and can arise in very disparate situations”, Doyle v. Northumbria Probation Committee [1991] 1 W.L.R. 1340 at 1348A.

23 For example, Wandsworth London Borough Council v. Winder [1985] A.C. 461.

24 Para. 3.3.

25 Paras. 3.5 and 3.6.

26 This approach has recently been affirmed by the House of Lords in Mercury Communications Ltd. v. The Director General of Telecommunications, [1995] The Times, 10 February.

27 Regrettably the Commission accepts the “pro-technicality” arguments advanced in R. v. Secretary of State for Home Affairs, ex parte Dew [1987] 1 W.L.R. 881.

28 Paras. 3.15 and 3.21. The report also advocates a procedure whereby any party to an action should be able to have a case certified by a district judge or master as appropriate for the judicial review procedure (para. 3.23).

29 The Commission appears to have adopted the view of a number of its consultees who “… doubted that, in practice, a case with merits would be turned down merely for reasons of delay” (para. 3.21).

30 Lord Diplock in O'Reilly regarded it as relevant to the desirability of the distinction between public and private law that there could be no transfer from private into public law, note 20, supra, at 284A-B.

31 Para. 4.3. The new form will require information relating to any alternative remedies available to the applicant, whether the respondent has been asked to reconsider the decision in question, the reasons for any delay and information about any application for legal aid. Under the new scheme it would be possible for the judge to issue a request for information to the respondent where he wishes to learn more about the position or where he suspects that there may be a simple answer to the applicant's claim (para. 4.9).

32 The Commission mentioned Scotland but could equally have referred to Canada, New Zealand or Australia.

33 Paras. 5.8 and 5.15.

34 Statistics in Annex 1 to Appendix C of the Report reveal a 48 per cent, variation in the grant of leave by different judges in the first seven months of 1994.

35 Paras. 5.14–5.35. The applicant will be entitled to know the reasons his claim failed to pass the preliminary consideration (para. 4.12).

36 Para. 5.22. Surprisingly, the Commission proposed no alteration to the limitation that third parties can only intervene in judicial review proceedings to oppose the motion or summons. This is in contrast to the recommendation in relation to statutory appeals (para. 12.19).

37 This may well now represent the position at common law: R. v. Secretary of State for the Environment, ex parte Rose Theatre Trust Co. [1990] 1 Q.B. 504 was rejected in R. v. Inspectorate of Pollution, ex parte Greenpeace Ltd. (No. 2) [1994] 4 All E.R. 329 (noted [1995] 54 C.L.J. 1). See also R. v. Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd. [1995] 1 W.L.R. 386. The report also recommends that unincorporated associations should be permitted to appear as applicants in judicial review proceedings where they pass the general test of standing and are appropriate persons to bring the challenge (para. 5.41). This contrasts with the position at common law: R. v. Darlington Borough Council, ex pane Association of Darlington Taxi Owners [1994] C.O.D. 424.

38 The House of Lords spoke equivocally on this issue in R. v. I.R.C., ex pane National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, and Otton J. held that the test for mandamus was more severe than that for certiorari in R. v. Inspectorate of Pollution, ex parte Greenpeace Ltd. (No. 2), note 37, supra.

39 , Lloyd L.J. in R. v. Dairy Produce Quota Tribunal, ex pane Caswell [1989]Google Scholar 1 W.L.R. 1089 at 1095, described the overlapping provisions as “in truth, nonsense”.

40 Para. 5.26. If the application occurs outside the three-month limit the applicant will also be required to show good reason (such as the pursuit of an alternative remedy) for the delay. It is not clear why a three-month time limit should be required in cases where a later application would present no difficulties for the administration or third parties.

41 It is proposed that the requirement of exhaustion will apply where the alternative remedy is an appeal to a court, tribunal or minister (paras. 3.24–3.26 and 5.33).

42 Bingham, “Should Public Law Remedies be Discretionary?” [1991] P.L. 64. A recent example of the alternative statutory remedy of appeal to a minister being regarded as no bar to judicial review proceedings was R. v. Devon County Council, ex parte Baker [1995] 1 All E.R. 73.

43 Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716.

44 The cases are R. v. Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 A.C. 603 and M. v. Home Office [1994] A.C. 377.

45 Para. 6.13.

46 Para. 6.17. The position under existing law is not clear.

47 R. v. Secretary of State for Education and Science, ex parte Avon C.C. [1991] 1 Q.B. 558.

48 See R. v. Inspectorate of Pollution, ex parte Greenpeace (No. I) [1994] 1 W.L.R. 570 (noted at [1995] 54 C.L.J. 1).

49 Para. 6.27.

50 Ibid.

51 Zamir and Woolf, The Declaratory Judgment (Sweet and Maxwell 1993), pp. 81 et seq. In R. v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds, [1995] The Times, 10 February, the House of Lords assumed for the purposes of argument that such a remedy exists at common law. In fact, the position is unclear.

52 R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses [1982] A.C. 617, per Lord Scarman at 654E–F. See also R. v. Secretary of State for Foreign Affairs, ex pane World Development Movement, note 37, supra.

53 For example, Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147; Barnard v. National Dock Labour Board [1953] 2 Q.B. 18.

54 Para. 7.12.

55 Paras. 8.5 and 8.7. The Report also proposes that the Latin titles of the prerogative orders should be altered to a quashing order (from certiorari), a prohibiting order (prohibition) and a mandatory order (mandamus). Moreover, proceedings would in future be called: “In the matter of an application for judicial review: ex parte Applicant, R. v. Respondent” (Paras. 8.3 and 8.4).

56 As in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112 and R v. Secretary of State for the Environment, ex parte Greenwich London Borough Council [1989] C.O.D. 530.

57 Paras. 8.12 and 8.14.

58 Para 8.18. The Commission referred to factors such as waiver, bad faith, absence of injustice or prejudice, impact on third parties and, exceptionally, the fact that the decision would have been the same irrespective of the error. See note 14, supra. The Commission's recommendations on substitution orders have already been discussed: see notes 13–16, supra, and accompanying text.

59 Paras. 9.4–9.6.

60 Para. 10.6. The Report also recommends that the Legal Aid Board should have regard t o the public interest when assessing awards for judicial review cases (para. 10.9).

61 See , Richardson and , Genn (eds.), Administrative Law and Government Action (Oxford 1994).Google Scholar

62 Bridges points out that 60 per cent. of judicial review cases concern homelessness, immigration and criminal proceedings (“The Reform of Judicial Review” [1993] Legal Action, December 7).