Senior judiciary publishes response to judicial review consultation

The senior judiciary has published its response to the Ministry of Justice’s consultation paper on judicial review. (It is normal practice for the judiciary to publish such responses 30 days after the consultation period ends.) In their paper, the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, Lord Justice Maurice Kay (Vice President of the Court of Appeal (Civil Division)) and Lord Justice Richards (Deputy Head of Civil Justice) draw attention to the fact that the courts have done much in recent years to reduce delays and increase the efficient administration of justice. As examples, they cite the opening of Administrative Court centres outside London, the introduction of a “totally without merit” certification procedure in the Court of Appeal and at the permission stage in the High Court, and the transfer of some immigration and asylum cases to the Upper Tribunal. They then say:

All these steps aim to reduce delays and decrease the burden on the Administrative Court’s finite resources. The judiciary welcomes further measures which help to increase the efficiency of the court process where such measures are consistent with access to justice and the rule of law.

They say that they have “no objection in principle to the proposal to shorten the time limits in planning and procurement judicial reviews so as to mirror the time limits for statutory appeals, while maintaining the Court’s discretion to extend time”. However, they go on to say:

At the same time it must be recognised that the likely practical consequences of the proposed reduction in time limits are significant. They include:

a. As foreshadowed by question 2, it is unlikely that parties will have time to comply with the Pre‐Action Protocol for Judicial Review before the expiry of the time limits. An associated risk is that parties will be less likely to resolve disagreements outside court. The pre‐action protocol prescribes a letter before claim setting out the decision under challenge and why itis considered to be unlawful, and a letter of response. It strongly encourages Claimants to seek appropriate legal advice before sending a letter before claim. It provides that Defendants should normally respond within 14 days. It would be rare to accomplish obtaining legal advice and exchanging letters in under six weeks and, in our view, barely possible to do so in under 30 days. There is no obviousstep in the pre‐action protocol that can be cut back so asto enable the protocol to operate on an accelerated basis;

b. It has always been clear that the pre‐action protocol does not affect the time limit for bringing judicial review applications. If the time limit is shortened, we  suspect that Claimants will lodge precautionary applications before the expiry of the time limit, while writing to ask the Court to take no immediate action on the claim;

c. There is likely to be an increase in the number of applications for an extension of time. Itis possible that a greater proportion of extension of time applications will succeed.

They are critical of the proposal, in “continuing breach” cases, to reckon time from the initial (rather than the most recent) unlawful act: this is “a complex area involving substantive law as well as procedural considerations and calling for extreme care. In our view, it is an area ill‐suited to development by procedural rule change.” They continue:

In relation to continuing breaches there may be good reasons why, for example, although the breach has been a continuing one the grounds to make the claim should be held to arise only when the breach first affects the Claimant (such as when an unlawful policy or regulation is first applied to him or he is first affected by a failure to fulfil an obligation under domestic law or to implement an EU directive) or why a claim should be entertained despite a failure to claim within three months from when the grounds to make the claim first arose (for example, in the case of continuing unlawful immigration detention). There are also cases where it is difficult to gauge when a continuing situation constitutes a breach so that time begins to run (e.g. when the delay in making a decision finally becomes unlawful). The kinds of issue that arise in such cases cannot readily be dealt with by a simple rule change.

Finally, it is worth considering the following comments in relation to the restriction of oral renewals:

[W]e see real problemsin the proposalto restrict an oral renewal simply on the basis that the matter has been the subject of a prior judicial hearing. The fact that there has been a hearing before a court, tribunal or ‘body exercising the judicial power of the State’ will not be an automatic guarantee that the matter has been properly considered. The range of situations covered by that formula is very wide and its blanket application could give rise to injustice: consider, for example,the case of a self-represented litigant with poorliteracy whose prior hearing was before lay magistrates and where the only legally trained person present was the justices’ clerk. Such a case might also be one where an oral renewal would assist in identifying the true point of an application and whether it was arguable.

Unsurprisingly, this is a thoughtful paper; it makes its points modestly but powerfully. It adds to the already large number of critical responses that the Government’s proposals attracted. For more by me on this, see this post on the UK Constitutional Law Blog, and the response of the Bingham Centre for the Rule of Law (which I co-authored with Sir Jeffrey Jowell).

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