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  • The Law Commission Consultation Paper No. 126

    Administrative Law: Judicial Review and Statutory Appeals

    LONDON: HMSO

  • The Law Commission was set up by section 1 of the Law Commissions Ac t 1965 for the purpose of promoting the reform of the law.

    The Law Commissioners are:

    The Honourable Mr Justice Brooke, Chairman Mr Trevor M. Aldridge, Q.C. Mr Jack Beatson Mr Richard Buxton, Q.C. Professor Brenda Hoggett, Q.C.

    The Secretary of the Law Commission is Mr Michael Collon and i ts offices are at Conquest House, 37-38 John Street, London W C l N 2BQ.

    This consultation paper was completed on 10 December 1992, when the Honourable Mr Justice Peter Gibson was Chairman. It is circulated for comment and criticism only and does not represent the final views of the Law Commission.

    The Law Commission would be grateful for comments before 3 0 June 1993. All correspondence should be addressed to:

    Mr J A Kimbell Law Commission Conquest House 37-38 John Street Theobalds Road London WC1 N 2BQ

    (Tel: 071-411 1215 Fax: 071-41 1 1297).

    It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, t o be able to refer t o and attribute comments submitted in response t o this consultation paper. Whilst any request t o treat all, or part, of a response in confidence will, of course, be respected, i f no such request is made the Law Commission wil l assume that the response is not intended t o be confidential.

  • THE LAW COMMISSION

    ADMINISTRATIVE LAW:

    JUDICIAL REVIEW AND STATUTORY APPEALS

    TABLE OF CONTENTS

    1. INTRODUCTION

    PART A JUDICIAL REVIEW

    2.

    3.

    4.

    5.

    6.

    INTRODUCTION

    Public Policy

    Ihe European dimension in administrative law reform

    Advisory Declarations

    l'he pressure of case-load on law reform options

    THE REQUIREMENT OF PROCEDURAL EXCLUSIVITY

    Transfer into, or out of, Order 53

    TIME LIMITS

    EC law and other jurisdictions

    THE LEAVE STAGE

    INTERIM RELIEF

    Interim Injunctions: Domestic Law

    Interim Injunctions: EC law

    Interim Declarations

    Paragraph Page

    1.1 - 1.7 1

    2.1 - 2.23 2.1 - 2.7

    2.9 - 2.11

    2.12 - 2.13

    2.14 - 2.23

    3.1 - 3.26 3.24 - 3.26

    4.1 - 4.33 4.16 - 4.22

    5.1 - 5.14

    6.1 - 6.33

    6.2 - 6.4

    6.5 - 6.6 6.7

    4

    4

    6

    7

    8

    11

    20

    21

    26

    32

    37

    37

    38

    39

    1

  • 7.

    8.

    9.

    10.

    11.

    12.

    13.

    14.

    15.

    Stay of Proceedings

    l3e Case for Reform: the Position of the Crown

    Zhe Case for Reform: interim relief prior to the granting of leave

    INTERRELATIONSHIP BETWEEN HABEAS CORPUS AND JUDICIAL REVIEW

    DISCOVERY

    STANDING

    RESTITUTION

    COSTS

    RENEWED APPLICATIONS AND APPEALS FROM REFUSAL OF SUBSTANTIVE APPLICATION FOR JUDICIAL REVIEW

    POWER TO SUBSTITUTE ORDER FOR THAT OF THE IMPUGNED DECISION

    DISCRETIONARY DENIAL OF REMEDIES

    Alternative Remedies

    SUMMARY OF ISSUES AND PROPOSALS FOR , REFORM OF THE PROCEDURES AND FORMS OF RELIEF

    PART B STATUTORY APPEALS AND APPLICATIONS TO THE HIGH COURT FROM OTHER BODIES

    16. INTRODUCTION

    Paragraph

    6.8 - 6.12

    6.14 - 6.21

    6.32 - 6.33

    7.1 - 7.8

    8.1 - 8.'12

    9.1 - 9.28

    10.1 - 10.3

    11.1 - 11.14

    12.1 - 12.11

    13.1 - 13.4

    14.1 - 14.16

    14.6 - 14.13

    15.1 - 15.30

    16.1 - 16.9 16.4 Applications to Quash

    .. 11

  • -

    Paragraph

    16.6

    16.8

    Page

    91

    92

    Statutory Appeals

    Crown Ofice Proceedings

    17. STATUTORY APPLICATIONS TO QUASH 17.1 - 17.5

    18.1 - 18.36

    18.5

    18.8

    18.11

    93

    95

    96

    97

    98

    18. STATUTORY APPEALS

    Appeals by way of rehearing

    Appeals on a point of law

    Appeals by way of case stated

    Cases statedporn the Crown Court and Magistrates' Courts 18.18 100

    Case stated by Ministers, tribunals and orher administrative bodies 18.22

    18.26

    102

    103 Miscellaneous provisions for appeals

    Appeals not restricted to points of law 18.27 103

    Further appeals to the High Court f iom inferior courts and bodies acting as appellate bodies 18.28 103

    Shared jurisdiction between inferior courts and bodies, and the High Court 18.30 104

    Powers to refer issues to the High Court for its opinion 18.31 104

    Appeals under the Insolvency Act 1986, section 375 18.36 106

    19.1 - 19.34 19.4

    19. ISSUES AND OPTIONS FOR REFORM 107

    107 Substantive Issues

    m e High Court's appellate jurisdiction 19.4 107

    Systematisation of forms of appeals, case stated and applications to quash 19.5

    19.9

    19.13

    108

    108

    110

    Standing

    llme Limits

    ... 111

  • *-

    Paragraph

    19.15

    Page

    110 Power to extend time

    Interim suspension and stay of orders pending appeal 19.16 111

    n e orders which can be made on appeal 19.18

    19.19

    111

    111 Rights of appeal to the High Court

    Relationship between appeals and Judicial Review 19.20

    19.22

    19.24

    111

    112

    113

    113

    114

    114

    114

    Procedural Issues

    n e form originating the appeal

    Respondents to appeals

    Entering the appeal

    19.26

    19.28

    Evidence on appeals

    n e hearing

    19.29

    19.30

    Further Appeals

    How to Proceed?

    19.31

    19.34

    114

    115

    ANNEX 1 SECTION 31 OF THE SUPREME COURT ACT 1981 AND R.S.C ORDER 53 116

    121 ANNEX 2 LIST OF CURRENT STATUTORY PROVISIONS FOR

    APPEALS ETC TO THE HIGH COURT

    Part A: Primary Legislation Part B: Subordinate Legislation

    ANNEX 3 EXAMPLES OF STATUTORY APPEALS WHERE STANDING IS MORE SPECIFIC THAN ANY PERSON AGGRIEVED 137

    iv

  • ADMIMSTRATIVE LAW: JUDICIAL REVIEW AND STATUTORY APPEALS

    1 INTRODUCTION

    1.1 Under item 10 of our Fifth Programme of Law Reform' we are undertaking an examination of the procedures and forms of relief available by way of judicial review and those governing statutory appeals and applications to the High Court from the decisions of inferior courts, tribunals and other bodies. Our 1976 Report on Remedies in Administrative L a d paved the way for the modern procedure in R.S.C., Order 53. The main focus of the present exercise will be on the effectiveness of the procedural mechanisms put in place in 1977 and revised in 1980.3 We have, in particular, undertaken to consider several areas known to be problematical, but this is not to be seen as limiting the generality of our remit. Our programme consciously chose not to look at the substantive grounds for judicial review, which we believe should be the subject of judicial development. We propose to consider and make recommendations, which will ensure that continuing development of the grounds for review is facilitated by the procedural framework.

    1.2 There have been many calls for further reform in this field including those from the Committee of the JUSTICE-AI1 Souls Review 'of Administrative L a d and Lord Woolf,S notably his Hamlyn lectures in 1989. The understanding of this branch of administrative law and the issues provoking the need for reform has been enhanced by the increase of case-law and academic commentary, in particular the contribution of Professor Sir William Wade Q.C..

    1.3 Even before we embarked on our research, we were aware of the wide interest which our further examination of this area of the law would provoke and this has guided the manner in which we intend to seek views on the scope for reform. We publicised the fact of our review widely and we have actively encouraged those

    I (1991) Law Com. No. 200.

    2 Report on Remedies in Administrative Law, Law Corn. No. 73.

    3 S.I. 1977, No. 1955; S.I. 1980, No. 2000. See also Supreme Court Act 1981, s. 31.

    4 Administrative Justice: Some Necessary Reforms (1988).

    5 Protection of the Public - A New Challenge (1990) (hereafter "Hamlyn lectures?, and "Judicial Review: A Possible Programme for Reform", [1992] P.L. 221. See also "A Hotchpotch of Appeals - the Need for a Blender" (1988), 7 C.J.Q. 44.

    1

  • 1.4

    1.5

    who have direct involvement with the procedure for judicial review to bring particular issues to our attention. Our plan is to allow a generous period for public consultation on this paper, and to follow up during the consultation period some of the most significant points raised by those who have approached us on specific matters. We understand that the Public Law Project, in conjunction with Maurice Sunkin of the University of Essex, is conducting empirical research on access to and the use of judicial review with the support of the Nuffield Foundation and that two preliminary reports on the findings should be published in early 1993. One will analyse the processing and results of all applications for judicial review lodged in the Crown Office between 1987 and 1989 and in the first quarter of 1991, including decisions on leave and at substantive hearings, the extent of withdrawals, and patterns of use in different subject areas. The second will examine the availability of legal aid for judicial review.6

    It is inevitably the case that some of the points which have been raised are so specific to a particular context

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