XVIth COLLOQUIUM OF THE COUNCILS OF STATE & THE SUPREME ADMINISTRATIVE JUDICIAL COURTS OF THE EUROPEAN UNION. Stockholm June 1998

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1 XVIth COLLOQUIUM OF THE COUNCILS OF STATE & THE SUPREME ADMINISTRATIVE JUDICIAL COURTS OF THE EUROPEAN UNION Stockholm June 1998 THE LEGAL REVIEW OF ADMINISTRATIVE DECISIONS: THE RESPECTIVE ROLE OF ADMINISTRATIVE & CIVIL OR PENAL COURTS & THEIR RELATIONSHIP UNITED KINGDOM NATIONAL REPORT This report follows the questionnaire prepared by the Supreme Administrative Court of Sweden. It should be noted that there are three legal systems in the United Kingdom, respectively for England, Scotland and Northern Ireland (although subject to certain exceptions - notably criminal cases in Scotland - the House of Lords is the final court of appeal for all three). The Northern Irish system is very closely modelled on the English, both as to substance and (certainly in respect of administrative law) procedure; it is a common law system. The law of Scotland, whose identity and independence is preserved by the Treaty of Union of 1707, is derived principally from its own customary law and from the Continental tradition of Roman law. There has, however, been a very great deal of convergence as regards the substantive principles of administrative law and many of the Acts of Parliament regulating administrative matters are substantially the same for the whole of the United Kingdom; but there remain important differences of procedure, most notably the fact that in Scotland there is no requirement that leave be obtained before an application for judicial review can be made. The detailed answers to the questionnaire set out below describe the position in the 1

2 United Kingdom generally, with a note on the Scottish position where there is any distinction which deserves mention. We should add also that in dealing with the questions below concerning "legal review" we proceed on the basis that in the British systems the questions must relate to the superior courts' jurisdiction to supervise the actions and decisions of legally subordinate bodies by way of what is known as judicial review. The purpose of the jurisdiction is to ensure that all such bodies keep strictly within the limits of their power conferred by law. * * * The Field of Application of the Legal Review 2.1 Is there a legal definition of the concept of "Administrative Decisions" or is this concept well-defined in case-law? There is no definition in statute of the concept of "administrative decisions" for the purposes of judicial review; and indeed the phrase itself is not an accurate description of the kinds of decision which are amenable to supervisory jurisdiction of the High Court (or in Scotland, the Supreme Court) by way of judicial review. That jurisdiction extends to every public body or authority except for the High Court itself (and the Court of Appeal and the House of Lords) and Parliament (in relation to main legislation: that is Acts of Parliament as opposed to subordinate or secondary orders, which are subject to the jurisdiction), and certain cases where an equally effective statutory remedy is provided. Decisions of central and local government are the principal, but by no means the only, categories of decision which are subject to judicial review. Decisions of lower courts are subject to the jurisdiction (which is why the term "administrative decisions" does not accurately describe the jurisdiction's scope), 2

3 although in many such cases statutory appeal rights take its place. Judicial review is a creation of the common law; it is neither conferred nor defined by legislation. It is an original jurisdiction, logically and historically anterior to the supreme power of Parliament to pass statutes. For that reason, its application has developed case-by-case. Sometimes in recent years there have been difficulties in ascertaining what is, or what is not, a public body such as to be amenable to the jurisdiction, but these difficulties are becoming less frequent. 2.2 Are there any general legal provisions distinguishing between administrative decisions which can be the object of legal review by a court and other administrative decisions? No. No administrative decisions, so far as that means decisions by public bodies, are immune from judicial review except where Parliament has specifically legislated, in any particular context, to produce that result. But such legislative measures are now extremely rare; and unless the relevant Act of Parliament creates another remedy, as effective as common law judicial review, the courts are extremely likely to interpret any such exclusory provision as inapplicable where the complaint is that the decision in question has been unlawfully made. 2.3 Are there non-statutory but generally accepted rules concerning this distinction? No; see 2.2 above. It should be emphasized that an important principle of our public law jurisdiction is that judicial review is a remedy of last resort. Thus where statute gives a right of appeal to the High Court on a question of law against the decision of a subordinate public body, the court will not generally entertain a judicial review; the statutory appeal is just as good. An example is the provision made by the town and country planning legislation for appeals on law to be brought to the High Court against a decision by the 3

4 Secretary of State or his Inspector refusing planning permission or allowing it only subject to conditions. Such an appeal is no more or less than a statutory form of judicial review; any point that could be raised on a common law judicial review can be raised upon such an appeal. 2.4 Are there any special legal provisions for the different fields of law? Only in so far as statute provides rights of appeal in particular fields effectively in substitution for judicial review. Town and country planning is one example. The decisions of a wide range of statutory tribunals which would otherwise be subject to judicial review in the ordinary way may be challenged by statutory appeal on points of law under the provisions of s.l1 of the Tribunals and Inquiries Act 1992, which cross-refers to a Schedule listing the tribunals whose decisions may be so appealed. 2.5 What are the main characteristics of decisions which can be the object of legal review (final decisions, decisions having binding effect, decisions against the interests of the appellant etc)? The primary characteristic is that the decision in question is one made by a public body or authority (see 2.1 above). As regards "final decisions", there are at least two senses in which the term "final" may be understood: (1) it means that there are no appeal rights against such a decision: in that case (other things being equal) judicial review will lie, but the decision may not otherwise be challenged; (2) it means that the decision is in some way provisional, and liable to be revisited by the decision-maker, perhaps in the light of further representations made by interested parties. In the latter case, judicial review is likely to be refused on the ground that it is premature, and the complaining party should await the "final" outcome of the decision-making process. There may, however, be exceptions: for 4

5 example, if it can be shown that the provisional decision is biased, or has been unfairly arrived at, in circumstances such that it cannot be assumed that the final decision will itself be untainted. As for "decisions having binding effect", while that is usually a requirement, there are cases in which judicial review will go against an advisory circular or guidance issued by a public authority where that is said to contain a mistake of law and where third parties, other subordinate decision-makers, or the public may rely on it. Then as regards "decisions against the interests of the appellant", it should be noted that in England Order 53 of the Rules of the Supreme Court prescribes that a party seeking to apply for judicial review must have "sufficient interest" in the subject matter. In the ordinary case, an applicant complains of a decision which affects his private rights, whether in his person or his property. But there is a growing jurisprudence in which "public interest" challenges are recognized. Where such a challenge is launched by an individual citizen or an interest group seeking to assert, not that his or its private rights are in the least affected, but that the decision in question raises an important issue of law which it is in the public interest for the court to resolve, the court will entertain it if it agrees that in all the circumstances the public interest indeed requires the court's adjudication on the point. Very broadly, the requirements of locus standi or "sufficient interest" have been liberally interpreted. 2.6 Which are the most frequent categories of administrative decisions that can resp. cannot be the object of legal review? There are no such categories which in principle are beyond judicial review (except decisions of the High Court, the higher appeal courts, and primary legislation passed by Parliament: see 2.1 above; but none of these can be described as administrative decisions). There are also the situations, to which we have referred, where statute provides an adequate alternative remedy. Of the cases where judicial review is available the most frequent instances 5

6 at the present time arise in the fields of immigration law, education and housing (but as regards housing, see 2.8 below). 2.7 Which are the time-limits for lodging petitions for legal review? Rules of Court in England (Order 53 Rule 4 of the Rules of Supreme Court) prescribe that a judicial review application must be brought promptly and in any event within three months. The primary rule is that the application must be brought promptly. What is "prompt" will depend on the circumstances of the case. The 3-month limit is a backstop, although litigants often believe that they have three months to bring their proceedings in any event, and that is quite wrong. The 3-month period can be extended, if good reason is shown for the delay. There is a further test, provided by s.31(6) of the Supreme Court Act 1981, to the effect that judicial review leave or relief may be refused if, by virtue of delay, to grant it would cause substantial hardship or prejudice to any person's rights (including, and perhaps especially, third parties) or would be detrimental to good administration. In Scotland there is no time-limit prescribed by the Rules of Court. In practice nearly every case is started promptly and where there is undue delay the Court has the power in its discretion to refuse a hearing. The forms of statutory judicial review, as in the case of the town and country planning field to which we have referred, and related areas such as highways and compulsory purchase, frequently provide for a 6-week time limit from the date of the decision complained of within which the proceedings must be brought; and this period cannot be extended. 2.8 Are there any important amendments in process or planned regarding these questions? Recent legislation has given a limited power of judicial review to the County Court in relation to the statutory rights of homeless persons. (The County Court is a 6

7 subordinate civil court exercising a local, as opposed to a national, jurisdiction. Common law judicial review is reserved to the High Court.) There have been some recent changes in the statutory appeal arrangements relating to the immigration appellate authorities, the Adjudicators and the Immigration Appeal Tribunal whose functions are conferred by the Immigration Act 1971 as amended. Otherwise the major (and enormously important) change envisaged is the incorporation into British domestic law of the European Convention on Human Rights; but this is more appropriately dealt with under section 3.4 below. 3. The Substance of the Legal Review 3.1 Does the legal review cover issues of law and matters of facts as well as questions of suitability? The common law judicial review jurisdiction exists to confine subordinate decision-makers within the proper remit of their legal powers. In the present state of its evolution, there are 3 broad principles. (1) Illegality. This applies where a decision-maker, whose powers are given to him by statute, misunderstands the true meaning of the Act which confers his authority, and thus arrives at a decision outside his statutory authority. (2) Irrationality. A decision-maker will also be held to have acted outside the law if his decision is irrational: that is (broadly), if it is based on no evidence, or he has taken irrelevant considerations in to account or failed to consider relevant considerations; or if he has acted in bad faith or for an improper motive. The law confines public decision-makers so that they must arrive at their decision only within the range of possible conclusions open to a reasonable, objective, and honest decision-maker. The classic text is the Wednesbury case [1948] 1 KB 223. English domestic law has not yet fully evolved a further, arguably more intrusive criterion of "proportionality" as a substantive touchstone for the legality of public 7

8 decisions, although recent jurisprudence tends to demonstrate that where a public decision will interfere with recognized fundamental rights (such as freedom of expression), the court will require a more rigorous justification for the interference that in other cases. We refer to the forthcoming incorporation of the European Convention on Human Rights below. (3) Procedural Unfairness. It is a general (but not universal) rule that persons whose rights may be affected by a public decision should have an opportunity to be heard before the decision is made. There are many refinements, and different applications, of this principle. The rule by no means necessarily requires that an oral hearing must be afforded. Its essence is that the affected person must know the case against him, and have an opportunity to put his own case. Embraced within it is the concept of "legitimate expectation", which is of course very familiar in the jurisprudence of Luxembourg and Strasbourg and in individual Member States of the European Union. Given this brief summary of the grounds of common law judicial review, it will be seen that error of fact is generally not reviewable. That is subject to the Wednesbury principle, in the rare case where a public decision-maker has arrived at a factual conclusion for which there is literally no support in the material before him, and/or where the evidence points unequivocally towards a different conclusion. Error of fact may also arise in judicial review in another situation. That is where a statute requires certain facts to be established as a necessary condition before the decision-maker's authority to act arises. Thus in our immigration legislation, the Secretary of State only has power to remove a person from the UK as an illegal entrant if he is demonstrated to be an illegal entrant; and so where an individual brings judicial review proceedings to challenge a decision of the Secretary of State to remove him as an illegal entrant, the Secretary of State must demonstrate to the court on the facts that the individual in question falls within the category of illegal entrant as defined 8

9 in the legislation. Where a priority must be demonstrated in this way before the public decision-maker's power to act arises to known as "precedent fact". If the fact is not proved to have happened, the court will hold that a public decision whose validity depended on the fact being true is invalid and unlawful. 3.2 Is the extent of the review different depending on the field of law? The three principles we have outlined, illegality, irrationality, and procedural unfairness apply generally across the whole field of common law judicial review. Illegality may be regarded as an absolute principle, in the sense that there is no case in which a statutory decision-maker is allowed to go beyond the limits of his statutory authority; and the extent of those limits, depending as they do on the correct construction of the statute in question, is always a matter for the court. Attempts by the legislature to exclude this principle, by the enactment of a provision to the effect for example that a decision shall be final, or not subject to challenge in any court (sometimes known as a no certiorari clause), are now not often made, and are liable to be narrowly interpreted by the High Court: cf 2.2 above. Statute may certainly allow the decision-maker to be the final arbiter of the facts and merits of the case; but if his decision is outside the powers granted by the statute, it will most likely be held to be reviewable notwithstanding any provision purporting to exclude the court's jurisdiction. As regards irrationality, the courts have (as we noted at 3.1) in recent years evolved a variable standard of review, such that where interference with a fundamental right is in question, the court will examine the case with what has been called "anxious scrutiny". While the primary decision (subject to the precedent fact cases) will always be for the statutory decision-maker, in a fundamental rights case the court will require to be satisfied that a proper priority has been accorded to the right in question, and that a substantial justification 9

10 is put forward for the State's interference with it. In other cases, for example concerning government economic policy, the court will accord a wider "margin of appreciation" to the decision-maker. In relation to procedural unfairness, the courts have recognized that the requirements of fairness will differ from case to case. They will depend on the statutory scheme in question. If the scheme lays down what appears to be intended as a complete code for the procedures to be adopted in relation to the decision-making process, the court will be unlikely to impose additional requirements. But in the last resort it will be open to the court to hold that the procedures adopted in any given case (whether under a statutory code or otherwise) do not satisfy the dictates of fairness or what in the older jurisprudence was called "natural justice". The imperatives of natural justice have traditionally been encapsulated in the expressions audi alteram partem and nemo judex in causa sua. These remain the essentials of the requirements of fairness imposed by English law, refined, however, by the legitimate expectation doctrine. There are rare cases (where, in particular, national security is engaged) in which the court may accept that audi alteram partem and legitimate expectation may have to give way to more pressing imperatives; although the prevailing judicial Zeitgeist is to limit and confine such instances. In addition there is some jurisprudence to the effect that whereas in a putative irrationality case the statutory decision-maker is the first judge, in a procedural unfairness case the court may substitute and apply its own view as to what fair procedure requires. 3.3 The powers of the court Has the court the power not only to quash an incorrect administrative decision but also to modify such a decision? The judicial review court in England has power to make an order of certiorari 10

11 to quash a subordinate decision, or to declare the law in the particular case. It also has power to issue an order of mandamus requiring the subordinate body to act in a particular way, for example to retake an earlier, flawed, decision in accordance with the court's ruling on the legal issues in question. The Supreme Court in Scotland applies similar remedies, albeit under different names. Generally speaking the court will not issue any order which substitutes its own view of the merits of the matter for that of the primary decision-maker. In the rare case where only one conclusion on the merits was legally available to the decision-maker, and he has arrived at a different conclusion, he may be ordered by mandamus to arrive at the correct decision. This does not imply any usurpation of the primary decision-maker's function. It only arises, as we have said, where there is only one decision to which he could lawfully have arrived In this respect are there different rules in the different fields of law? Not as regards the High Court's administrative law jurisdiction. Subordinate appellate tribunals (such as the Immigration Adjudicators and Appeal Tribunal) which possess a jursidiction to decide matters of fact as well as law may substitute their own decision on the merits for that of the first instance decision-maker. See below Are the powers of a court of first instance different to the powers of a superior court? For the purposes of this question, we take the term "court of first instance" to refer to the High Court exercising its judicial review jurisdiction. In that case, the Court of Appeal and the House of Lords do not possess any wider or different jurisdiction. Their function is to correct any errors of the High Court, and not to apply or exercise powers of a different nature. 11

12 3.4 Are there any important amendments in process or planned concerning the substance of legal review? The UK Government has introduced a Bill to incorporate the European Convention on Human Rights. Although the UK has been party to the Convention since its inception, the Convention has never been within the corpus of British domestic law. The Bill (which may, of course, be amended as it goes through Parliament) will (a) oblige public authorities to observe Convention rights and (b) oblige the courts (who are themselves a "public authority") to recognize and enforce Convention rights. The Bill will not allow the High Court to strike down or quash an Act of Parliament as being inconsistent with the Convention. The court will be required to construe any legislation consistently with Convention rights unless that is impossible to do so. If the court finds that to be impossible, it may make what is called a "declaration of incompatibility", and there is then a fast-track procedure by which the government may ask Parliament to make an order amending the legislation in question so as to conform with the Convention. There are a number of aspects of the proposed legislation which are presently the subject of controversy, not least relating to the tension between Article 8 and Article 10, and the possible evolution of a right of action to protect privacy (though this, were it to happen, would fall within the private law sphere rather than the judicial review jurisdiction). The implications and consequences of incorporation for the law of the UK will be very deep. For present purposes, it is enough to say that, assuming the Bill is enacted much in its present form, an important result for the judicial review court will be that discretionary decisions affecting Convention rights will most likely have to be judged, not by the traditional Wednesbury test, but in line with the Strasbourg jurisprudence: that is to say, where State interference with a right such as freedom of expression is sought to be justified, the court will probably have to consider whether there exists a "pressing social need" to support the interference. We should, however, emphasize 12

13 that these are matters for the future adjudication of the superior courts after the Convention has been incorporated. It is neither possible nor appropriate to state definitively how the courts will respond to their new responsibilities after incorporation. But there is no doubt that incorporation will represent a legal innovation of major constitutional importance. 4. Courts exercising legal review 4.1 A summary description of the court organization What different categories of courts are there (e.g. civil or penal courts, administrative courts, tribunals etc)? In England the High Court exercising its original common law jurisdiction in judicial review is at the centre of the system. Appeal rights flow, with leave, to the Court of Appeal and House of Lords. The High Court, as we have indicated, also hears statutory appeals on law only, and that is itself a form of judicial review. The County Court has, as we have said, a limited judicial review jurisdiction in homeless persons cases. In Scotland cases of judicial review may only be taken in the Supreme Court, which comprises courts of first instance and courts of appeal. Leave is not required for an appeal. Further appeal may be taken to the House of Lords in London. Statutory appeals on a point of law may be brought to the appeal courts within the Supreme Court. Apart from the court hierarchy itself there are a large number of statutory tribunals which hear appeals against administrative decisions both on the law and the merits. These tribunals are in principle subject to the jurisdiction of the High Court on judicial review, but - as again we have indicated - in many instances a statutory appeal from the tribunal's decision is provided. Such tribunals exist in the fields of immigration, education, tax, and many others. "Penal" courts do not generally have a role to play, if the phrase means 13

14 courts having a criminal jurisdiction to impose punishment. The criminal courts in the UK possess their own structure which lies outside judicial review (although there are some circumstances in which a decision of a magistrates court in a criminal case may be judicially reviewed). However, it is important to emphasize that a public decision-maker possesses no immunity from the jurisdiction of the criminal courts; if he were to commit a crime in the course of his office he would be amenable to the ordinary criminal jurisdiction. Equally, if he were to arrive at a decision with the malicious intent to injure an affected party, or in the knowledge that he had no power to act as he did, he would be liable to action in the ordinary civil court for what is known as the tort of misfeasance in public office. In short, the English system does not have special courts for public administrators. The judicial review jurisdiction has been developed and refined so as to provide a convenient procedure for challenging public decisions (which confers certain protections on public bodies acting in good faith, such as the requirement of leave and strict time limits), but if there is any question of a private wrong being done to the citizen, he may sue a public authority for doing it as readily as any other defendant How many instances are there within each category? As we have said, the judicial review jurisdiction is exercised by the High Court with appeal rights (with leave) to the Court of Appeal and the House of Lords, so that in that case there are three instances, as ther are also in Scotland. Where the High Court hears a statutory appeal, the same system prevails. As regards the statutory tribunals (dealing both with law and merits), the position varies. In the immigration context a claimant may appeal against the decision of the Secretary of State to remove him or deport him to the Adjudicator (or, in refugee cases, the Special Adjudicator). Appeal lies with leave from the Adjudicator 14

15 to the Immigration Appeal Tribunal (but there are exceptions to this: where the Secretary of State gives a certificate, in a refugee case, that the immigrant may be removed to a safe third country which in his view will fulfil its obligations under the Refugee Convention of 1951, there is no right of appeal to the Tribunal, and in that case the immigrant's recourse against the Adjudicator's decision is by way of common law judicial review). In some circumstances appeal lies by statute direct from the Immigration Appeal Tribunal to the Court of Appeal; where that is not the case, the Tribunal's decision will be amenable to common law judicial review. In the social security field, there is an elaborate statutory structure for appeals, from the decision of an Adjudication Officer to a Social Security Appeal Tribunal, and thereafter to a Social Security Commissioner or Tribunal of Commissioners, against whose decision, again, there is an appeal direct to the Court of Appeal. Thus the position varies according to the subject matter. But in every field there are at least three instances How many courts are there within each instance? See and above. The essential structure is that ultimately all cases are subject to review or appeal in the High Court or the Court of Appeal and thereafter the House of Lords; but generally in England, but not in Scotland, there is a leave requirement at each stage Are the different categories of courts to some extent coordinated regarding the organization, e.g. regarding staff or premises (only the principal features)? The higher courts dealing with administrative cases in England, that is the High Court, Court of Appeal, and House of Lords, all sit in London. The High Court and Court of Appeal are administered in the Royal Courts of Justice. The Supreme Court in Scotland, both at matters of first instance and appeals, sits in Edinburgh, and has its own administration. The 15

16 House of Lords is separately administered in the Palace of Westminster. Subordinate tribunals sit in different parts of the country. The Lord Chancellor's Department has overall responsibility for the staffing of the court service and for the provision of premises throughout the system in England. Most of the staffing and administration of the courts and tribunals in Scotland is separately managed in Scotland. 4.2 The career as a judge Is there a common career for the entire court organization or are there in principle separate careers? The full-time judiciary is almost without exception recruited from the practising legal profession. There is no common career as between administrators in the Court Service and legal practitioners; the former are civil servants, the latter are in independent practice. The principal feature of the system for appointment to the judiciary in the UK is that there is no separate career structure for judges; all of them will have been practitioners first If there are separate careers, is it possible to appoint a judge belonging to a court of one category to a post at a court of another category and, if that is possible, does it often occur? At the High Court level in England, judges may be transferred between the three Divisions: Queen's Bench, Chancery, and Family. However although transfer from the Family Division to the Queen's Bench is not uncommon, we do not know of an instance of any other transfer between the Divisions of the High Court. A Circuit Judge (who, so far as his civil jurisdiction is concerned, sits in the County Court which we have briefly described) may be promoted to the High Court, and this is quite frequent. But he or she will only have arrived on the Circuit Bench after a career as a barrister or solicitor. In Scotland while there 16

17 are a few courts set up for special purposes (such as for cases of disputed elections or the valuation of property for tax purposes) there are no formal divisions by reference to the subject matter of the case. However in practice certain of the judges may be nominated for certain kinds of cases, including cases of judicial review. As for membership of the various tribunals, a legal qualification and experience is generally required; so that, again, these offices are held by persons who have been in practice in the law. As regards lay membership of such tribunals, see 4.3 below Can judges be recruited from other legal professions, e.g. prosecutors, lawyers and professors? As we have said, the judiciary is generally recruited from the practising legal profession. There is no experience in the UK of appointment of academic lawyers to the fulltime bench at any level, although a small number sit in the County Court as Recorders or Assistant Recorders (these are part-time appointments with a commitment to sit not less than 20 days in each year). As regards prosecutors, a member of the Bar whose practice has been largely or entirely in the prosecution of criminal cases is no more nor less eligible for appointment to the bench than any other barrister. However, it should be noted that in England since the establishment of the Crown Prosecution Service by Act of Parliament in 1985, there is a corps of full-time employed lawyers within that Service who at present have only limited rights of audience in the Crown Court (where criminal cases are generally conducted by barristers in private practice instructed, in the case of the prosecution, by the CPS. The possible extension of the rights of audience of employed CPS lawyers is presently the subject of debate. If they are extended, there may perhaps be scope in due course for their appointment to the judiciary; but we should say that we know of no such proposals, and it would very much be a matter for the future. 17

18 4.3 To what extent do laymen take part in the adjudication process? In various tribunals, such as those concerned with employment, social security and immigration; but there is always or almost always a legally qualified chairman. The jury system for criminal trials of course involves laymen every time, twelve in England, fifteen in the Criminal Court in Scotland. In the administrative law sphere, there is no lay participation in the High Court or above. 4.4 How is the distinction made between the fields of competence of the different courts, by general provisions or by detailed enumeration in the legislation? See, generally, 2.1, 2.3, 2.4, 2.6, 2.8, and above. 4.5 What are the general rules concerning the competence of the courts, i.e. what kind of cases are dealt with by the different categories of courts? See generally 2.1, 2.2, 2.3, 2.4, and, in particular, above. It is important to emphasize that the lynch-pin of the system is the High Court's common law judicial review jurisdiction. As we have said at 2.1, it is an original jurisdiction, not derived from any legislation. Its history in England is in the prerogative writs of certiorari, mandamus, and prohibition which came to be issued by the King's Courts in the Middle Ages. In Scotland the jurisdiction can be traced back to the Scottish King's Council which used to provide remedies for injustice where none others were available but which became less prominent after the Union of the Crowns of England and Scotland and disappeared after the Union of the Parliaments in Its competence is general, going to every public body except the higher courts themselves and Parliament in relation to primary legislation. Every other court or tribunal exercises only the specific jurisdiction which is conferred on it by statute. Because of the general competence of the judicial review jurisdiction, its power to review an 18

19 administrative decision of a subordinate public body against which no statutory appeal lies is a matter, not of legislative aurthority, but of basic common law principle. It is regarded as a primary guarantee of the rule of law; this is why legislative attempts to oust the jurisdiction have in the past been largely unsuccesful unless Parliament has provided an equivalent adequate remedy (see 2.2 and 3.2 above). The requirement that all subordinate public authorities, including the Execeutive government, be subject to the court's supervisory power to correct legal error, may be seen as a constitutional fundamental. The judicial review jurisdiction is certainly not displaced by the statutory provision of another remedy; and this is why the jurisprudence shows that it is a remedy of last resort (see 2.3 above): if Parliament has provided an alternative adequate remedy, by way of statutory appeal, the judicial review court will not entertain the case unless that remedy has been exhausted, and where the statutory remedy is to the High Court itself with appeal rights thereafter, it will not, generally, entertain the case at all. But this is a matter of discretion, not jursidiction. As we have said (2.4), the High Court itself has statutory jurisdiction to hear appeals in many cases under the provisions of s.ll of the Tribunals and Inquiries Act There are also instances where other legislation confers a right of appeal to the High Court by what is known as case stated. Appeals from the Mental Health Tribunals, brought under the Mental Health Act 1983, are an example of the latter. Case stated appeals may also in many instances be brought against decisions of the Crown Court (other than on trial on indictment) and Magistrates Courts. See further below. These are largely, but not entirely, concerned with criminal matters. The competence of the courts in relation to review on grounds of law may thus be summarised as follows: (1) All subordinate bodies are in principle subject to the common law judicial review 19

20 jurisdiction. (2) Where an equivalent adequate remedy is given by statute, the judicial review court will not entertain the case but require the statutory route to be exhausted. (3) Such a statutory remedy relates always to a specific subject-matter. Statutory appeals to the High Court are provided for in a whole range of cases by the Tribunals and Inquiries Act 1992, and in a series of particular cases by other statutes such as the Town and Country Planning Act 1990, the Mental Health Act 1983, and the Value Added Tax Act (4) Lower courts or tribunals having a statutory jurisdiction to hear appeals will themselves be subject to judicial review, or (if the statute so provides) to appeal direct to the Court of Appeal. 4.6 What courts are handling the legal review of administrative decisions and may the review be carried out by more than one category of courts? See 4.5 above. 4.7 Is the development heading towards the establishment of new administrative courts or towards a widened competence for the already existing courts or is there a trend in the opposite direction, ie towards the suppression of the administrative courts? There is certainly no trend towards the suppression (in any sense) of the judicial review court. Anything of that nature would be widely regarded as unconstitutional. Nor is there any move to restrict the various statutory jurisdictions. No new administrative courts are envisaged, but there is a growing tendency to recognise "public interest" challenges (see 2.5 above). When incorporation of the European Convention on Human Rights is in place, there will be new pressures of work on many courts, in particular the criminal courts and the High Court (dealing with judicial review and case stated appeals). The High Court's procedural rules may have to be refined to take account of this. We should notice that in any 20

21 event in England plans are in hand to overhaul the whole process of civil justice, very broadly to make it faster and cheaper and in particular to achieve a degree of proportion between the cost of bringing and defemding a case and the amount at stake or the importance of the issues. This follows Lord Woolf s Report, commissioned by the previous Lord Chancellor, entitled "Access to Justice"; the final Report was published in July Its proposals, however, range much wider than the field of review of administrative decisions. Their principal impact will be elsewhere, on civil private law claims. 4.8 Are there any important amendments in process or planned concerning the court organisation? The "Access to Justice" proposals: see 4.7 above. 5 The proceedings at the courts Indicate if and - in that case - in what way the proceedings in administrative cases differ from the proceedings in ordinary cases concerning the following questions: 5.1 How are the proceedings initiated? In England an application for judicial review can only be made with the leave of the court, so that the first procedural step is the application for leave. The applicant must file a document with the court (called "Form 86A") setting out the decision he desires to challenge, the relief sought, and the grounds of his application. The application must be supported by an affidavit. In the ordinary case these documents are then placed before a High Court judge who will decide on the papers, without a hearing, whether leave should be granted; although an applicant has the right to ask for an oral hearing. If leave is refused on 21

22 paper, the applicant may re-apply for leave in open court. If leave is then again refused, he is entitled to make a further application for leave to the Court of Appeal. If leave is granted (at any stage) the papers are served, together with a Notice of Motion, on the prospective respondent or respondents, who must file any affidavit evidence on which they propose to rely within 56 days (unless the court giving leave has abridged the time for reasons of urgency). The applicant may file further evidence in reply if so advised. The number and bulk of affidavits will obviously vary from case to case. Any original documents on which the parties rely (such as correspondence etc.) will be exhibited to their affidavits. Otherwise there are no further pleadings, and the case will be listed for hearing in the Crown Office List. The Crown Office List is a section of the Queen's Bench Division of the High Court. It is manned by 18 or 20 judges of the Queen's Bench Division, who are nominated to the List. It is to be noted, however, that the Crown Office List is not a separate Division of the High Court, and the nominated judges spend only part of their judicial time (perhaps about one quarter) doing Crown Office cases. Judicial review applications which relate to what is called "a criminal cause or matter" must be heard by a Divisional Court in the Crown Office List, that is a court of at least two judges, nearly always presided over by a Lord Justice of Appeal. Scotland, having its own legal system, has a quite distinct procedure for judicial review. In Scotland an application for judicial review does not requires leave of the Court. It is presented to the Court by way of a written petition, accompanied by any necessary suporting documentation. The judge before whom it comes orders the petition to be intimated to any interested parties and specifies a date at least seven days later for a first hearing of the case. At the first hearing the interested parties will be heard and the judge may then decide the whole case. Alternatively he may call for further information or make such other orders 22

23 as he thinks fit and arrange a second hearing for the disposal of the case. The procedure is designed to be simple, flexible and quick. Statutory appeals to the High Court in particular areas, brought under the Tribunals and Inquiries Act or other specific statutes, generally involve no leave requirement. The time limits for bringing the application vary according to the subject matter. At 2.7 above we have described the time-limit for common law judicial review (the application must be brought promptly and in any event within three months), and referred to the six week time limit imposed in planning and like cases. The procedure for ordinary civil actions both in England and in Scotland, such as for negligence or breach of contract, is quite different. The usual mode of initiating such proceedings is by writ; that is a formal summons to the defendant to respond, which will either incorporate, or be followed by a Statement of Claim which pleads the plaintiffs case fully. That is responded to by a Defence, which in turn may be responded to by a Reply. There is no leave requirement. The time limits are very much longer than in judicial review cases: commonly six years, sometimes three, sometimes twelve (the detailed provisions are contained in the Limitation Act 1980). The parties are automatically obliged to disclose all documents relevant to the issues in the case, including documents which are adverse to the party making disclosure. At the trial, evidence is usually given orally, with the witnesses being cross-examined by the opposing party. The procedure in Scotland is distinct but very broadly follows the same outline. It will be apparent that the writ procedure is very much slower (and more expensive) than the judicial review procedure. The judicial review procedure is designed to have administrative cases heard especially swiftly, partly because the uncertainty of forthcoming litigation can be harmful to the proper administration of public affairs, and partly 23

24 because (which is really the same thing) the rights of third parties, or even the public at large, who are not before the court may be affected by the outcome. Importance is also attached to the leave requirement in judicial review. It minimizes the risk that public bodies, whose legitimate interests are not their own but those of the public on whose behalf they exercise power, are not vexed by obviously unmeritorious litigation. 5.2 Are the proceedings essentially oral or in writing? In writing, by affidavit: see 5.1 above. There is power to order the attendance of witnesses for cross-examination in judicial review (and statutory appeals) where the interests of justice so require. It is, however, a power that is rarely exercised. Usually there is no substantial disagreement as to the primary facts or events in a judicial review case: the case will generally turn on the legality of the decision or the decision-making process, and the relevant facts will nearly always emerge from undisputed documents. 5.3 Is the court responsible for the case being sufficiently investigated? Generally speaking the adversarial tradition of the common law applies as much in judicial review (or statutory appeal) as in other cases. However (a) the court may require a party which it thinks affected by the litigation to be served (even though he or it is not the primary respondent whose decision is challenged; and (b) the court may ask the Attorney General to appoint an amicus curiae if (as sometimes happens) only the applicant is represented; or the applicant appears in person and the court thinks there are issues which require the assistance of independent counsel; or, even if all parties are properly represented, the court thinks there is some interest or question which ought to be canvassed which will not necessarily be raised by the parties themselves. Although an amicus may be asked for in any 24

25 class of case - not just judicial review - it more often happens in the public law field. That is a circumstance which reflects a general difference between administrative law cases and private law cases, namely that whereas the latter are usually only concerned with the private rights of the parties, the former are concerned to vindicate the standards of decision-making which the law imposes on public bodies, so that the court's duty may very well not be confined to adjudicating upon the particular claims and interests of the applicant before it. In Scotland of an Amicus Curiae is very rare. Service of the applicaton on the Lord Advocate should in appropriate cases secure that any wider issues are presented to the Court. 5.4 What kinds of evidence are accepted? See 5.1 and 5.2 above. 5.5 Do the parties pay any fees for the court trial? A fee of 50 is payable on lodging the papers for an application for judicial review leave. A like fee is payable in the case of statutory appeals. If leave is given, as we have said the respondent has to be served with a Notice of Motion, upon which a fee of 120 is payable, but credit is given against this for the 50 already paid on leave applications. In Scotland an initial fee of 95 is required and a further fee is imposed for the hearing, assessed on its length. 5.6 Is it possible to grant public legal aid? Yes, subject to means. 5.7 Is it necessary for a party to be represented by a lawyer? 25

26 A natural person is always entitled to represent himself. With certain very limited exceptions, a company or corporate body must be represented by counsel or solicitor having the necessary rights of audience. In recent years there has been a growth in the number of individual applicants for judicial review appearing in person (and, indeed, litigants more generally, especially in the County Court and the Court of Appeal). While the right to do this continues to be regarded as an important right, it can cause considerable difficulties for the use of court time and judicial resources. 5.8 Is it generally a two-party process in administrative cases? Very broadly, the answer is Yes, but alongside the increasing recognition of "public interest" challenges (see 2.5), there is also the potential for third parties to intervene in judicial review cases to assert some particular, legitimate aspect of the public interest which is engaged by the litigation but may not be exposed by argument between the primary parties. In addition the court may, as we have noted, ask for an amicus curiae, and the papers may be required to be served on a party who is not the primary respondent. The essential adversarial concept of an "attacker" and a "defender" - plaintiff/defendant, applicant/respondent - is thus much more loosely applied in public law proceedings than in private law litigation. This is a trend which will probably gather strength as time goes on. 5.9 Can parties in administrative cases be compensated for their litigation costs? Yes. Who should pay the costs of proceedings is generally in the discretion of the court. The usual rule, or practice, is that the loser pays the winner's costs. There is rather more scope for different orders to be made in public law litigation. An applicant who brings a case which the court thinks raises an important point that ought to be determined in the 26

27 public interest, but whose application is ultimately dismissed, is not always ordered to pay the successful respondent's costs. In some cases two parties or more may appear to resist an application: for example, in the town and country planning field, both the local planning authority and the developer (the recipient of planning permission) may wish to oppose the appeal. In that case, the court will generally order only one set of costs rather than compensate both respondents. It remains, however, a matter of discretion. Where an amicus is instructed, he will never ask for costs against any party whatever the result, nor be ordered to pay any party's costs: he is only there as a friend of the court Are there in other respects procedural rules which are applicable in administrative cases? There are special rules for appeals by way of case stated. We will not describe them in detail, save only to say that in such appeal the body appealed against is required to produce a document (a "stated case") which sets out the issues which it had to determine, the facts which it found (and sometimes the evidence before it), the arguments of the parties before it, and to formulate a question or questions for the High Court's determination. This is a very simple and effective procedure (if the stated case is well prepared), because the High Court need usually look no further, so far as the materials in the case are concerned, than the stated case itself and will simply answer the question or questions put to it on the basis of the facts found by the subordinate body. Statutory appeals under the Tribunals and Inquiries Act do not involve a requirement of leave to bring the proceedings. They are usually initiated by a simple Notice of Motion setting out the grounds relied on, and supported by an affidavit. The paper work is very similar to the Form 86A required in judicial review Are there any important amendments in process or planned concerning the 27