ADMINISTRATIVE LAW: JUDICIAL REVIEW AND STATUTORY APPEALS LAW COMMISSION LAW COM No 226 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 Ordered by The House of Commons to be printed 26 October 1994 LONDON: HMSO L18.75 net HC 669 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the I purpose of promoting the reform of the law. I The Commissioners are: i 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, WClN 2BQ. LAW COMMISSION ADMINISTRATIVE LAW: JUDICIAL REVIEW AND STATUTORY APPEALS CONTENTS Paragraph Page PART I: INTRODUCTION AND SUMMARY 1.1 1 PART 11: GENERAL CONSIDERATIONS Public Policy 2.1-2.7 7 The European dimension in administrative law reform 2.8-2.11 9 Case-load pressure 2.12-2.14 10 The response on consultation 2.1 5-2.20 11 Developments since the publication of the consultation paper 2.21 13 Delay: the present position 2.22-2.27 14 Principles relevant to case-load issues 2.28 15 A duty to give reasons 2.29 16 Compensation in respect of ultra vires acts 2.32 18 PART 111: PROCEDURAL EXCLUSIVITY Procedural exclusivity and Order 53’s pTovisions for leave, promptness and discretion 3.2-3.7 19 The rise and fall of the exclusivity principle 3.8-3.15 21 A procedure for transfer 3.16 25 Transfer out of Order 53 3.17-3.19 26 Transfer in to Order 53 3.20-3.2 1 27 A reference procedure 3.22 28 Transfer to the Crown Office list or certification of a case as “fit for a nominated judge” 3.23 29 Alternative remedies 3.24-3.26 29 PART IV: THE INITIAL STAGE A new form 86A 4.3-4.7 31 A request for further information 4.8-4.1 1 33 Notification of the decision 4.12 35 ... 111 .-._. Paragraph Page PART V: FILTERING OUT HOPELESS APPLICATIONS: LEAVE OR PRELIMINARY CONSIDERATION Written applications 5.9-5.12 38 Criteria for permitting an application to proceed to a substantive hearing 5.13-5.35 40 (i) An arguable case 5.15 41 (ii) Standing 5.16-5.22 41 (iii) Time limits 5.23-5.30 45 (iv) Exhaustion of alternative remedies 5.31-5.35 48 Reasons for not allowing an application to proceed to a substantive hearing 5.36 50 Respondent’s consent to a substantive hearing of the application 5.37 50 Capacity to apply for judicial review 5.38-5.4 1 51 PART VI: INTERIM RELIEF The present position 6.2-6.6 53 Principles on which interim relief is granted 6.7 55 Interim relief against the Crown in domestic cases 6.8-6.14 56 Interim relief prior to the decision to allow an application to proceed to a substantive hearing 6.15-6.17 59 The form of interim relief 6.18-6.24 60 Interim injunctions 6.19-6.20 61 Interim declarations 6.21-6.22 61 Stays 6.23 62 Third parties 6.24 63 Recommendation on the form of interim relief 6.25-6.27 63 Should the principles governing the availability of interim relief be set out in statute or the Rules? 6.28-6.29 64 Where primary or delegated legislation is impugned 6.30-6.31 65 PART VII: INTERLOCUTORY PROCEDURES Introduction 7.1-7.3 66 Discovery and Interrogatories 7.4-7.12 67 PART VIII: REMEDIES Nomenclature 8.1-8.3 72 iv Paragraph Page Title of cases 8.4 73 Claims for Restitution and in Debt, and Interest 8.5-8.8 73 Advisory declarations 8.9-8.14 74 Power to make substitute orders 8.15-8.16 76 Discretionary denial of remedies 8.17-8.2 1 77 Prospective declarations 8.22 78 PART JX: RENEWED APPLICATIONS AND APPEALS Renewed applications 9.1-9.2 80 Appeal against a refusal to allow an application to proceed to a substantive hearing 9.3 80 Setting aside an order permitting an application to proceed 9.4 81 Appeal from refusal to set aside an order permitting an application to proceed 9.5 81 Appeal from refusal of substantive applications for judicial review 9.7-9.9 82 PARTX: COSTS Costs on the leave application 10.2-10.3 84 The substantive hearing 10.4-10.5 86 Costs from central funds 10.6 87 Legal Aid 10.7 87 Types of legal aid 10.8 88 The test for obtaining legal aid 10.9-10.10 88 PART XI: HABEAS CORPUS Functions of habeas corpus 11.1-1 1.2 90 Procedure 11.3 91 The response to Consultation Paper No 126 11.4-1 1.9 91 The scope of review in habeas corpus 1 1.10-1 1.20 93 Habeas corpus and interim relief 11.21-11.24 97 Appeals 11.25-1 1.32 98 PART XII: STATUTORY APPEALS Introduction 12.1 102 Crown Office Rules 12.2 102 Statutory Appeals 12.3 102 Simplification to two procedures 12.4-12.5 103 Case stated 12.6-12.7 103 V Paragraph Page The High Courts’ powers on appeals by way of case stated 12.8-12.10 104 Statutory Review 12.1 1 106 Judicial Review or Statutory Review 12.12-12.13 106 Systematisation of applications to quash 12.14 107 The High Court’s appellate jurisdiction 12.15 108 Standing 12.17-12.18 108 Intervention 12.19 109 Time limits and power to extend time 12.20-12.22 110 Interim suspension and stay of orders pending appeal 12.23 112 Other interlocutory provisions 12.24 112 The orders which can be made on appeal 12.25 113 Should there be a leave requirement? 12.26 113 Allocation of business 12.28-12.29 114 PART XIII: SUMMARY OF RECOMMENDATIONS APPENDIX A Draft Administration of Justice Bill with exp-matory notes and Draft RSC Order 53 with explanatory notes 125 APPENDIX B: Draft Forms 153 APPENDIX C: Note on case-load management and statistics of case-load as at end of July 1994 163 APPENDIX D: Time limits: EC Law and other jurisdictions 178 APPENDIX E: Model for statutory application to quash 181 APPENDIX F: List of those who responded to Consultation Paper No 126 185 APPENDIX G: List of papers presented at Robinson College and Institute of Advanced Legal Studies seminars and names of those who attended both 189 vi LAW CQMMISSION Item 10 of the Fifth Programme of Law Reform: Judicial Review ADMINISTRATIVE LAW: JUDICIALREVIEW AND STATUTORY APPEALS To the Right Honourable the Lord Mackay of Clashfern, Lord High Chancellor of Great Britain PART I INTRODUCTION 1.1 In this report we make recommendations for reform of the procedures and forms of relief available in judicial review proceedings. It is the result of our examination Of: “the mechanism of judicial review, and the connected subject of statutory appeals and applications to quash made to the High Court from inferior courts, tribunals and other bodies” under our fifth programme of law reform.’ 1.2 Our 1976 report on Remedies in Administrative Law2paved the way for the modern procedure in Order 53 of the Rules of the Supreme Court (RSC). The procedural mechanisms put in place in 1977 and revised in 1980’ have had to be applied in the context of wide ranging changes in the scope of judicial review, both in terms of the substantive grounds for review and the numbers of applications for judicial review brought before the courts. There have been a number of calls for further reform in this field including those from the Committee of the JUSTICE-All Souls Review of Administrative Law4 and Lord Wo0lfJ5notably in his Hamlyn lectures in 1989. The development of the requirement that as a general rule claims for injunctions and declarations relating essentially to all public law matters must be brought by an application for judicial review (which we call the principle of “procedural exclusivity”) has led to concern that needless litigation is generated over procedural - issues, rather than the substance of a dispute. ’ (1991) Law Corn No 200. Report on Remedies in Administrative Law (1976) Law Corn No 73. SI 1977 No 1955; SI 1980 No 2000. See also Supreme Court Act 1981, s 31. Administrative Justice: Some Necessary Reforms ( 1988). Rotection of the Public -ANew Challenge (1990) (hereafter “Hamlyn lectures”), and “Judicial Review: A Possible Programme for Reform”, [ 19921 PL 22 1. See also “A Hotchpotch of Appeals - the Need for a Blender” (1988) 7 CJQ 44. 1 1.3 In our programme we chose not to look at the substantive grounds for judicial review, which we believe should continue to be the subject of judicial development. The recommendations in this report are designed to ensure that continuing development of the grounds for judicial review is facilitated by an effective procedural framework. 1.4 In 1993 we published a consultation paper which reviewed the operation of the judicial review procedure and made a number of provisional recommendations.6 Our consideration of the issues was set against the background of three policy interests: (i) the importance of vindicating the rule of law, (ii) the need for speed and certainty in administrative decision-making and (iii) the private interest of individual litigants in obtaining a remedy for their grievances.' It was also set against the need to take account of the requirements of European Community Law and OUT international obligations under the European Convention on Human Rights.