The last 30 years of changes of the Judicial Review discussed.
In the last 30 years or so many changes have occurred to not only the structure, but also to the scope of Judicial Review, thereby constructing the contemporary system of judicial review that is in place in England and Wales today. Many of these changes and reforms that have occurred have been due to reports, such as the 1977 and 1994 Law commission reports1, and the Justice-All Souls review, published in 1988. Significant changes have also occurred due to the courts changing perception of Judicial Review in the light of its enlarging scope and importance in administrative law.
Perhaps one of the principle changes that occurred was the 1977 reform of Order 53, which is also given statutory recognition in section 31 of the Supreme Court Act 1981. Prior to 1977 there were separate procedures where applying for one of the prerogative remedies (such as certiorari, mandamus and prohibition), which was commenced by the old Order 53 procedure, and when applying for either a declaration or injunction, via a writ (i.e. challenging the decision via private law). The legal divide between the different remedies, was criticized by many, including Richard Gordon Q.C. as being "... artificial. It meant that different standing rules applied according to the procedure employed. If the applicant sought a prerogative order locus standi was wider since special damage or infringed private law rights were never necessary constituents of proving an interest under the old O.53"2. The division of remedies pre-1977 represented an inflexible approach to Judicial Review, which denied applicants certain remedies that may have been more appropriate to their case. Certain procedural differences also existed at this time. No automatic right was given to cross examination, interim relief or discovery of documents when applying for a prerogative order, whereas this existed in an action for an injunction or a declaration. There were also differences between the time limits allowed for an ordinary action and those allowed for one of the prerogative orders, the latter being more stringent, (a six-month limit for certiorari.)
These artificialities caused concern to many, including the Law Commission, which published its recommendations on possible reform for Judicial Review in 1976. Without listing all the recommended reforms, it is possible to say that all of the procedural reforms suggested were implemented by the new Order 53 and following this the Supreme Court Act 1981, except the call for interim declarations. The principle reform was that of providing the full availability of all five remedies, under the one umbrella of Order 53 "Applications for Judicial Review"3, thus providing the court with a higher degree of flexibility in the remedies that could be granted. In relation to locus standi, the test was revised to whether the applicant has "sufficient interest in the matter to which the applicant relates"4. This greatly relaxed the requirement of standing; therefore allowing a number of previously excluded people and groups the possibility of challenging a decision through Judicial Review. However certain uncertainties still exist in relation to the courts implementation of the "sufficient interest" test, which are discussed later. Returning to the issue of the 1977 reforms, in addition to the above, a provision was made for the disclosure of documents, cross examination and interrogatories (order 53, r.8(1)), which provided the applicant with an obvious advantage over the pre-1977 Order 53 procedure. It should be noted that the reforms did not bring about absolute rights in many of the provisions, including r.8(1) (the discovery of documents, etc), but in fact provided the courts with a discretion. In Errington v Wilson [1995] SLT 1193, this issue of when to allow cross-examination was considered. It was decided that the principles of natural justice must be adhered to, and as there were differences between experts on important points, it was a breach of natural justice to not allow cross-examination.
Another of these discretions was that of allowing the applicant's proceedings to continue as if they had begun by writ (r.9(5)), where it occurs that the case is better dealt with in a private law context. This discretion is of great importance, especially where the distinction between public and private law is indistinct. The use of this discretion was discussed by Lord Diplock, in the much criticised case of O'Reilly v Mackman [1983] 2 AC 237. This case introduced the Exclusivity principle, being that Public and Private law should be kept distinct, and that by allowing a person ...
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Another of these discretions was that of allowing the applicant's proceedings to continue as if they had begun by writ (r.9(5)), where it occurs that the case is better dealt with in a private law context. This discretion is of great importance, especially where the distinction between public and private law is indistinct. The use of this discretion was discussed by Lord Diplock, in the much criticised case of O'Reilly v Mackman [1983] 2 AC 237. This case introduced the Exclusivity principle, being that Public and Private law should be kept distinct, and that by allowing a person to in an action begun by writ to continue as if he had applied via Order 53, would "be contrary to public policy, and as such an abuse of the process of court"5. This principle seems to be somewhat artificial, especially in the context of Judicial Review, where, as stated previously the distinction between public and private law is not clear-cut. Professor Wade states, "...it caused many cases, which on their merits would have succeeded, to fail merely because of choice of the wrong form of action."6 O'Reilly was also criticised by the Justice-All Souls report, published in 1988, where the House of Lords was asked to reconsider their decision.7 Matthew Holt argues,
"... much of the problem with exclusivity was that a doctrine intended to ensure that public bodies received procedural protections in appropriate cases, became over used by those same bodies. Exclusivity became an attractive "knock out" point to raise in writ proceedings, whether or not the process of the court was being abused by the Plaintiff"8
In recent times the Lords have taken a more liberal approach to the Exclusivity principle, such as in Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1997] 4 All ER 747, where, "As long as it caused no hardship to the parties, the public or the court, cases could be transferred off and onto the Crown Office list as appropriate where the wrong action was brought."9. However it is arguable that the Exclusivity principle could be challenged under the Human Rights Act 1998, for non compliance with the convention right to a fair hearing (Article 6).
It should also be noted that it is now possible to raise an issue of vires as a defence, as was done in Wandsworth LBC v Winder [1985] AC 461 (Private law proceedings) and in Boddington v British Transport Police [1998] 2 All ER 203 (Criminal proceedings). Both cases represent an important extension of the ultra vires doctrine, rendering it more flexible than was previously possible.
When enquiring as to the weaknesses of Judicial Review, it is possible to highlight a number of areas where such weaknesses have been rectified, as well as areas that still need rectification.
Returning to the topic of Standing, it can be said that following the introduction of the test of "sufficient interest", the courts have not taken a uniform approach to the test. For example, in the case of R v Secretary of State for the Environment ex parte Rose Theatre Company Ltd [1990] 1 All ER 754, it was decided that a company that had been formed to protect the site of the Globe Theatre, did not have sufficient standing. However, in contrast, in R v Secretary of State for the Environment ex parte Greenpeace Ltd [1994] 4 All ER 352, it was decided that a similar group did have locus standi. The Law Commission raised this question of uncertainty in its 1994 report10, where it recommended a two-track approach, the first track being where an individual is adversely affected, the second being where it would be in the public interest for the review to be heard. It would seem whilst these recommendations have not been implemented, the courts now take a more liberal approach to standing, such as in the Greenpeace case, and subsequently in R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995] 1 WLR 386.
Another significant weakness is that there is no general duty to give reasons for a decision, despite the decision in Doody (below). This was noted by the Justice-All Souls report of 1977. This is still very much a problem in Judicial Review, as without a local authority giving reasons for a decision, the possibility of the decision being challenged is severely limited. The courts have to some extent rectified the weakness, in cases such as R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, where it was considered necessary for the Home Department to give reasons for its decision, as otherwise it would be contrary to the principle of fairness, as well as limiting the possibility of the applicant being able to challenge the decision.
Another weakness is that there is no right to damages from a successful action in Judicial Review. Despite there being a power conferred upon the court to award damages by Order 53 r.7, although not separately from another remedy, this is in practice rarely used, considering the strict tests employed by court in X v Bedfordshire County Council [1995] 2 AC 513. The other possible way to claim damages against a public authority is to make a challenge in Private law, by alleging that the authority is in fact in breach of a private right conferred on the individual. However it must be remembered that this is subject to the test of a duty of care, reasonable foreseeability and the court finding that decision was ultra vires. It is therefore unlikely that any applicant will succeed in such an action. Couple this with the financial outlay that is required for two separate actions, as well as considerations for the extra time required for such an action, it can hardly be said that the law in this area is in a satisfactory state.
Weaknesses also occur in the limitations of matters that are justiciable and those that are not. Traditionally the ultra vires doctrine has been concerned with the source of the power. Its scope has been enlarged by the introduction of "Wednesbury unreasonability"11, but the decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 significantly enlarged the areas which could be challenged by Judicial Review. Lord Scarman stated, "... the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter."12 The scope of decision makers that can be challenged through Judicial Review was further enlarged by the decision in R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] 2 WLR 699 which held that a despite the Panel on Takeovers and Mergers not being formed though legislation, it could still be challenged via Judicial Review, as there was a public element to its activities. However the scope of Judicial Review in relation to whether a decision maker can be challenged is still limited, which represents a significant weakness that it has yet to shuffle off. Sir Harry Woolf argues that there is a case for Judicial Review to be extended as "... Powerful bodies, whether they are public bodies or not, because of their economic muscle may be in a position to take decisions which at the present time are not subject to scrutiny and which could be unfair or adversely affect the public interest."13
In conclusion it is possible to say that the 1977 reforms provided a much-needed revision of the structure of Judicial Review. Despite this Judicial Review still contains many weaknesses and certain artificialities, such as there being no duty to give reasons, harsh time limits imposed and the difficulty of obtaining damages against a Public Authority, to mention but a few. With the increasing importance of Judicial Review in our society, it can be argued that it needs to progress more, and perhaps become more flexible, so that it can effectively keep decision makers in check. In my opinion, following the Human Rights Act 1998, the dimensions of Judicial Review will enlarge even more so by responding to the extra scope (especially in relation to Article 6 of the European Convention of Human Rights). However, how the Courts respond to the incorporation of the Convention into English law, only time will tell.
Words 1878
Bibliography
R. Gordon Q.C., Judicial Review and Crown Court Practice, 1999, 1st edt, Sweet & Maxwell, London.
Barnett, Constitutional & Administrative Law, 2000, 3rd edt, Cavendish Publishing, London.
Mathew Holt, Revisiting the JUSTICE/All Souls Report, [2000] Judicial Review 56
Dawn Oliver, Is the Ultra Vires rule the basis of Judicial Review? [1987] Public Law 543
H Woolf, Public law-Private law: Why the divide? A personal view, [1986] Public Law 220, at 225
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Law commission reports No. 73, cmnd 6407 and No.226, H.C. 669 respectively.
2 R. Gordon Q.C., Judicial Review and Crown Court Practice, 1999, p. 132.
3 Order 53 rr.1 & 2, Supreme Court Act 1981 s.31 (1) and (2), as referred to by R. Gordon Q.C., Judicial Review and Crown Court Practice, 1999, p. 134
4 Order 53, r.3(7) & Supreme Court Act 1981 s.31(3) as referred to by R. Gordon Q.C., Judicial Review and Crown Court Practice, 1999, p. 136
5 Per Lord Diplock, O'Reilly v Mackman [1983] 2 AC 237, at 285
6 Wade & Forsyth, Administrative Law, 1994, p.682, as quoted by Barnett, Constitutional & Administrative Law, 2000, p.1031.
7 Administrative Justice: Some Necessary Reforms, 1988, Section 6.18
8 Mathew Holt, Revisiting the JUSTICE/All Souls Report, [2000] JR 56, at 57
9 Mathew Holt, Revisiting the JUSTICE/All Souls Report, [2000] JR 56, at 57
0 Law Commission, Administrative Law: Judicial Review and Statutory Appeals, 1994, Consultation paper no. 226/HC 669 p.118 as referred to by R. Gordon Q.C., Judicial Review and Crown Court Practice, 1999, p. 138
1 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
2 Per Lord Scarman, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 407as quoted by Dawn Oliver, Is the Ultra Vires rule the basis of Judicial Review? [1987] Public Law 543, at 546.
3 Woolf, Public law-Private law: Why the divide? A personal view, [1986] Public Law 220, at 225.
"Contemporary Judicial Review has finally shuffled off all the artificialities and weaknesses of its history."
