Judicial Review Procedures
Judicial review is a fundamental aspect of our constitutional arrangements as it allows the judiciary to perform its ancient duty of supervising the exercise of power by the executive. Thus abiding by the doctrine of checks and balances while also upholding the principle of the separation of powers. However there seem to be many procedural difficulties when making an application for a judicial review.
This article will critically evaluate these difficulties by starting with the requirement of locus standi. The exclusivity principles will then be analysed, followed by a critical evaluation of the permission stage requirement, to finish with an evaluation of the time limit criteria. As a way of concluding, suggestions will be made as to what aspects of the judicial review procedures should be reformed, if any.
Locus Standi
The criteria for fulfilling the 'sufficient interest' test are now more lenient and easier to be satisfied. R v. Secretary of state for the Environment ex parte Greenpeace Ltd (1994) in contrast to the judgment of R v. Secretary of State for the Environment ex parte Rose Theatre trust Company Ltd. (1990) was allowed standing by justifying that it has the support of 400,000 people across the UK, hence it was well placed to require a judicial review on behalf of all those concerned with the matter. The same approach has been followed in the case of R v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd. (1995) which sought a judicial review of the decision of the Secretary of State to grant aid to Malaysia. The leave was justified on the grounds that it was unlikely that any other body or person would have sufficient interest in challenging this decision. In R. v Somerset CC, Ex p. Richard Dixon (1998) 75 P. & C.R. 175, Sedley J. made it clear that the English courts have always recognised that an individual or an organisation without a legal interest in the outcome of a case, has the right to draw the court's attention to apparent misuse of the public power.
However, on a case by case bases decisions are made as to whether the requirement of locus standi is met or otherwise, which has lead to contrasting decisions in the two well known cases of Rose Theatre and Greenpeace. In the former, a company was campaigning to save the Globe theatre site in London, while the facts of Greenpeace are in many ways alike. Yet the decisions as to who has locus standi differ. As the area of judicial review is still in its infancy, it is developing rather rapidly, therefore such difference might be explained by the fact that Greenpeace was decided some time after Rose Theatre. However in Greenpeace, the judge warned pressure groups that they will not automatically be held to have sufficient interest in the future, therefore the requirements of locus standi are still uncertain.
Exclusivity Principle
A controversial issue which has caused much debate amongst academics is that of the exclusivity principle. The exclusivity principle was laid down in O'Reilly v. Mackman [1983] in which a general rule was established stating that claims for declarations or injunctions relating essentially to public law matters may only be pursued via the special procedure laid down in Order 53 of the Rules of the Supreme Court (Administration of Justice Act 1981, s. 31). Order 53 contains significant procedural protection for authorities, such as time limits and requirement of leave, which cannot be said for the writ procedures. The case has been criticised by many academics however, one of which comments:
'the House of Lords... appeared to create a form of procedural exclusivity separating public from private law with an archaism reminiscent of the old forms of action.'1
Since that decision however, the courts have soften their approach to the so called 'public' and 'private' law divide, not least due to the difficulty with defining 'public' and 'private'. In R v. East Berkshire Health Authority, ex p. Walsh [1985] it was decided that Order 53 is an inappropriate mean of challenging a public authority when that authority is acting in the capacity of a private contractual party. This was further emphasised in the House of Lord decision in Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee [1992] where it was stated that the Order 53 procedures are only mandatory in cases involving purely public law issues.
Leave Stage Requirement
'If the leave stage were abolished it would... deprive the court of the power to exercise its discretion at the outset of the proceedings. The discretion which the court has at this stage is very much more limited than that which exists at a later stage although it is still very important.'2
Before seeking a judicial review, a leave is required from the High Court. The leave requirement has been defended by the judiciary for performing a crucial function in maintaining the case load within an optimal level as articulated by Lord Donaldson:
'The public interest normally dictates that if the judicial review jurisdiction is to be exercised, it should be exercised very speedily and, given the constraints imposed by limited judicial resources, this necessarily involved limiting the number of cases in which leave to apply should be given.'3
The permission stage therefore assists case-load management by deterring unmeritorious applications with the minimum use of resources. However there is no evidence to suggest that without a leave requirement settlement patterns in judicial review would differ significantly from those commenced by writ.4 Another function of the permission stage is the protection of public administrative bodies by being required to send a notice to the defendant that leave has been granted. This might assist the respondent in deciding how to react to the legal challenge and it might 'buy time'as when permission has been granted, the respondent might become aware that they may incur costs, which might act as an incentive to settle the issue privately, hence perhaps the high rate of withdrawals. The leave requirement benefits both parties however as for an applicant it is a: 'a remarkably quick, cheap and easy method of obtaining the view of an experienced High Court judge as to whether the application has any merit.'5
Notwithstanding the above mentioned arguments, the leave requirement has been criticised for being too unpredictable as there are no criteria for granting permission to a claim for judicial review.6 The Justice-All Souls Report (1988) suggests that the leave requirement widens the 'private' and 'public' law divide therefore recommends its complete abolition by arguing that in private law proceedings there is no leave requirement. However, the difficult constitutional role of the judiciary in reviewing the exercise of power by the executive may be an impotent argument in favour of keep the requirement of leave when seeking a judicial review as Order 53 proceedings are stricter therefore making it more difficult to judicially review bodies exercising public functions.
Time Limit
The time limit criteria is harder than it seems to fulfil as judicial review is a remedy of last resort. Hence claimants are faced with the dilemma of whether to apply prematurely and be refused or wait and run out of time. The resolution of this dilemma seems most crucial in environmental cases as Order 53, r. 4 states:
'An application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.'
The courts encourage a settlement as early as possible between the parties, therefore require a notice to be give to the defendant that a challenge has been issues. However, it has been suggested that three months is too short of a period for negotiations to be concluded before the matter is settled in court. The time limit will be extended in exceptional circumstances however. In R. v. Bassetlaw District Council ex p. Oxby [1998] P.C.L.R. 283. an extension of 18 months was granted and in R. v. North West Leicestershire DC ex p. Moses(2000) Env. L.R. 443 an extension of six years was granted, which might counteract such criticisms. However such long extensions are the exception.
The time limit requirement is even more controversial when considering that the application should be made 'promptly' which the court are interpreting as meaning within six weeks, see R. v. Ceredigion C.C., ex p. McKeown[1998] 2 P.L.R. 1. In R v Secretary of State for the Environment ex parte Ostler (1976), Ostler wished to challenge a project of widening the access road and wanted to provide evidence that had he known of the secret undertakings, he would have done so before and that the order had been made in bad faith, amounting to fraud. The court accepted that, had he challenged the order within six weeks, it would have been considered. The strictness of the application of the time limit which the above case illustrates, has led to suggestions that the 'prompt' requirement is being used as an ouster close by the government towards judicial review.
One way of addressing these criticisms might be by having a fixed period within which applications may be made, rather than a dual test of 6 weeks and 3 months which might cause much confusion and uncertainty. The Justice-All Souls Report goes further by recommending that the requirement to apply 'promptly and in any event within three months' should be abolished alltogether.7
Recommendations for Reforms
Sir Jeffery Bowman in the Bowman Report (2000) has made a number of recommendations for reforming judicial review procedures. Amongst such recommendations has been the suggestion of moving away from ex parte to inter parte in the permission stage which requires the defending authority to be given a full notice of the application. According to the recommendation, the claimant must gather all the relevant materials and disclose their case in full to the defendant, while the defendant only has to give his defence in outline. Not surprisingly therefore, this recommendation has been criticised for not safeguarding the claimant's interests, which would be expected in a procedure designed to put the parties on an equal footing.8
The most problematic aspects of the judicial review procedures are their uncertainty and unpredictability as most of the requirements for a judicial review are in the judge's discretion, from locus standi to the exclusivity principle and arguably most importantly the permission stage. As such, the Brown report has been criticised for not addressing such issues satisfactorily as:
'Like the old Rules, the new Rules say nothing about the criteria for the grant of permission and thus leave matters in the rather unpredictable state that they were in before.'9
The uncertainty and unpredictability of the criteria needed to be fulfilled for a judicial review might lead to the prevention from access to justice due to case load which leads to questioning of the fairness of the process itself.10 Perhaps one way these concerns may be addressed is by having a codified set of rules in an act of Parliament stating who may make a claim for a judicial review and what criteria need to be fulfilled in order for a judicial review to be granted. By taking such approach the wide discretion which seems to lead to much uncertainty would become less of a problem. Such approach would also address the confusion that the time limit criteria seems to have created. When high stakes are involved, such as the granting of planning permission, the six weeks time limit seems too short, especially in some highly complex cases. Therefore the interpretation of the courts of the promptly requirement as being in any event within six weeks, should perhaps be abolished entirely or a fixed time limit be codified in a statue stating the period within which claims may be made.
Conclusion
Judicial review has evolved from case law rather than statue. It plays a pivotal role in supervising the use of power by public bodies, a constitutional role which aims to protect human rights and liberty. Not surprisingly therefore some consider it to be the most exciting area of law which is perhaps made even more exciting by its fast development.
However, this constitutional role of the judiciary places the courts in a fragile position as while supervising public bodies care needs to be taken not to act out of jurisdiction or in any case unconstitutionally. Therefore the procedures which need to be followed in order for a claim for a judicial review to be successful, must protect public bodies from wasting their resources on unmeritorious claims. This is implemented through the time limit criteria which in many ways is a necessary safeguard from preventing public authorities from going forward with an action when most of the resources have been allocated. However, there is much concern and criticism regarding the procedures, ranging from the time limit to document enclosure, for making a claim for judicial review. Nonetheless, while arguably the concerns and criticisms of the academics serve to highlight the shortfallings of these procedures, judicial review is developing rather rapidly and being reformed constantly, therefore perhaps it will not be long until the right balance is held between supervising the actions of public bodies while also protecting them.
