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  • ADMINISTRATIVE LAW: JUDICIAL REVIEW A N D 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 purpose of promoting the reform of the law.

    I 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

    PART I: INTRODUCTION AND SUMMARY

    PART 11: GENERAL CONSIDERATIONS Public Policy The European dimension in administrative law reform Case-load pressure The response on consultation Developments since the publication of the consultation paper Delay: the present position Principles relevant to case-load issues A duty to give reasons Compensation in respect of ultra vires acts

    PART 111: PROCEDURAL EXCLUSIVITY Procedural exclusivity and Order 53s pTovisions for leave, promptness and discretion The rise and fall of the exclusivity principle A procedure for transfer Transfer out of Order 53 Transfer in to Order 53 A reference procedure Transfer to the Crown Office list or certification of a case as fit for a nominated judge Alternative remedies

    PART IV: THE INITIAL STAGE A new form 86A A request for further information Notification of the decision

    Paragraph

    1.1

    2.1-2.7

    2.8-2.11 2.12-2.14 2.1 5-2.20

    2.21 2.22-2.27 2.28 2.29 2.32

    Page

    1

    7

    9 10 11

    13 14 15 16 18

    3.2-3.7 19 3.8-3.15 21 3.16 25 3.17-3.19 26 3.20-3.2 1 27 3.22 28

    3.23 29 3.24-3.26 29

    4.3-4.7 31 4.8-4.1 1 33 4.12 35

    ... 111

    .-._ .

  • PART V: FILTERING OUT HOPELESS APPLICATIONS: LEAVE OR PRELIMINARY CONSIDERATION

    Written applications Criteria for permitting an application to proceed to a substantive hearing

    (i) An arguable case (ii) Standing (iii) Time limits (iv) Exhaustion of alternative remedies

    Reasons for not allowing an application to proceed to a substantive hearing Respondents consent to a substantive hearing of the application Capacity to apply for judicial review

    PART VI: INTERIM RELIEF The present position Principles on which interim relief is granted Interim relief against the Crown in domestic cases Interim relief prior to the decision to allow an application to proceed to a substantive hearing T h e form of interim relief

    Interim injunctions Interim declarations Stays Third parties

    Recommendation on the form of interim relief Should the principles governing the availability of interim relief be set out in statute or the Rules? Where primary or delegated legislation is impugned

    PART VII: INTERLOCUTORY PROCEDURES Introduction Discovery and Interrogatories

    PART VIII: REMEDIES Nomenclature

    iv

    Paragraph

    5.9-5.12

    5.13-5.35 5.15 5.16-5.22 5.23-5.30 5.31-5.35

    5.36

    5.37 5.38-5.4 1

    6.2-6.6 6.7

    6.8-6.14

    6.15-6.17 6.18-6.24 6.19-6.20 6.21-6.22 6.23 6.24 6.25-6.27

    6.28-6.29

    6.30-6.31

    7.1-7.3 7.4-7.12

    8.1-8.3

    Page

    38

    40 41 41 45 48

    50

    50 51

    53 55

    56

    59 60 61 61 62 63 63

    64

    65

    66 67

    72

  • Title of cases Claims for Restitution and in Debt, and Interest Advisory declarations Power to make substitute orders Discretionary denial of remedies Prospective declarations

    PART JX: RENEWED APPLICATIONS AND APPEALS Renewed applications Appeal against a refusal to allow an application to proceed to a substantive hearing Setting aside an order permitting an application to proceed Appeal from refusal to set aside an order permitting an application to proceed Appeal from refusal of substantive applications for judicial review

    PARTX: COSTS Costs on the leave application The substantive hearing Costs from central funds Legal Aid Types of legal aid The test for obtaining legal aid

    PART XI: HABEAS CORPUS Functions of habeas corpus Procedure The response to Consultation Paper No 126 The scope of review in habeas corpus Habeas corpus and interim relief Appeals

    PART XII: STATUTORY APPEALS Introduction Crown Office Rules Statutory Appeals Simplification to two procedures Case stated

    Paragraph

    8.4 8.5-8.8 8.9-8.14 8.15-8.16 8.17-8.2 1 8.22

    9.1-9.2

    9.3

    9.4

    9.5

    9.7-9.9

    10.2-1 0.3 10.4-10.5 10.6 10.7 10.8 10.9-10.10

    11.1-1 1.2 11.3 1 1.4-1 1.9 1 1.10-1 1.20 11.21-1 1.24 1 1.25-1 1.32

    12.1 12.2 12.3 12.4-12.5 12.6-12.7

    Page

    73 73 74 76 77 78

    80

    80

    81

    81

    82

    84 86 87 87 88 88

    90 91 91 93 97 98

    102 102 102 103 103

    V

  • The High Courts powers on appeals by way of case stated Statutory Review Judicial Review or Statutory Review Systematisation of applications to quash The High Courts appellate jurisdiction Standing Intervention Time limits and power to extend time Interim suspension and stay of orders pending appeal Other interlocutory provisions The orders which can be made on appeal Should there be a leave requirement? Allocation of business

    PART XIII: SUMMARY OF RECOMMENDATIONS

    Paragraph Page

    12.8-12.10 104

    12.1 1 106

    12.12-12.13 106

    12.14 107

    12.15 108

    12.17-12.18 108 12.19 109

    12.20-12.22 110

    12.23 112

    12.24 112

    12.25 113

    12.26 113

    12.28-12.29 114

    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 163 178

    181

    185

    APPENDIX D: Time limits: EC Law and other jurisdictions APPENDIX E: Model for statutory application to quash APPENDIX F: List of those who responded to Consultation Paper No 126 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: JUDICIAL REVIEW 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 Law2 paved 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 Wo0lfJ5 notably 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 - A New 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

    1.4

    1.5

    1.6

    1.7

    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.

    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 la

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