Letter from a leftie lawyer: 16 October 2020

Review of judicial review

This is not really a letter from a leftie lawyer, but my reply to the Tories’ review of administrative law (ie mostly of judicial review)

INDEPENDENT REVIEW OF ADMINISTRATIVE LAW[1]

Response from

David Burrows

Solicitor advocate

Introduction: judicial review and separation of powers

Why judicial review? It is to give judges – who are independent of the executive and of the legislature – the ability, on application by a private individual, to review the administrative decisions made by or on behalf of the state or other public body.

In the United Kingdom we do not have a true separation of powers, whatever Montesquieu may have thought. If one accepts for now that a separation of powers regards the executive, the legislature and the judiciary as having separate powers, in UK the executive – Prime Minister and his cabinet – are part of the legislature.

The judiciary are broadly independent of legislature and executive. They can supervise the executive and be a check on what they do in constitutional and rights law terms; but in United Kingdom law they are subsidiary to Parliament; and judges frequently acknowledge that in their judgments and their disposal of cases. I will deal with this later.

By any objective and fair standard, a responsible government should recognise its powers must not be unlimited; but that there should be certain checks on what it does from an independent body, such as the judiciary. This has been understood for most of the period since 1689.

The present government must face the political fact that to inhibit judicial checks on, or review of, its work is part of the ‘slippery slope’ towards fascism which is so fashionable amongst some modern governments. This is a political debate, led by politicians who are not in the British tradition of understanding the balance of political institutions. The members of the review panel must please try to understand the important principles which the likes of our present Home Secretary and Prime Minister (especially) seem unable or unwilling to understand

Focus of ‘Independent Review’

The panel asks for the following to be considered:

1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

3. Whether, where the exercise of a public law power should be justiciable:

(i) on which grounds the courts should be able to find a decision to be unlawful;

(ii) whether those grounds should depend on the nature and subject matter of the power; and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”,[2] and, in particular:

(a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

(c) on possible amendments to the law of standing;

(d) on time limits for bringing claims,

(e) on the principles on which relief is granted in claims for judicial review,

(f) on rights of appeal, including on the issue of permission to bring JR proceedings and;

(g) on costs and interveners.

Saving of costs

I understand that costs savings is not a primary concern of the review; but it is to be hoped that it can be considered. In what follows I mention a number of areas where a change in the law and of the rules could promote costs savings, of benefit for the tax-payer and for the parties. These include:

  • More use of district judges in the Administrative Court especially at the permission stage
  • Streamlining of disclosure (duty of candour) and close control on the extent to which documents and other material is relevant to any judicial review issue
  • Drawing in judicial review procedures to other civil proceedings with a public law element (I mention especially family law and child support, two of my specialist areas)

Structure of law

For present purposes I will assume the law to be substantive and procedural. Substantive law consists of statute law (passed by Parliament) and common law (judge-made law). The latter can only be altered by the former (ie not by rule or (mostly) by other delegated legislation). Most judicial review law is common law; though limited aspects of it are codified in Senior Courts Act 1981 and procedural rules (notably Civil Procedure Rules 1998 Part 54).

The first three questions above mostly go to substantive law. I have my own views on this area; but I am sure many – better qualified than I – will comment. I will restrict my reply to the fourth question on procedural aspects.

First I will explain my experience of practice generally and then of judicial review. Attached is a form of curriculum vitae which shows that I am predominantly a family lawyer; but in that capacity I dealt with a variety of legal aid work and (almost unique amongst solicitors) I did a variety of child support work. I have marked judicial review reported case I conducted as advocate with a * (though they are mostly obvious from their title). I am now largely retired; but I still have a small caseload. I write extensively on family law and related matters.

I do my own advocacy whenever I can. I am a founder contributor to the Family Court Practice (the ‘Red Book’: the family lawyer’s equivalent of the ‘White Book’). I am familiar with a variety of aspects of procedural law (eg my most recent book is on ‘Open Justice in family proceedings’ (October 2020) for the Law Society).

My experience of judicial review was mostly in child support – judicial review of the Secretary of State for Work and Pensions; but also in judicial review of the Commissioners and later the Upper Tribunal (it was my judicial review application for Mr Cart which eventually emerged in the Supreme Court as Cart v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, [2012] 1 FLR 997) and very occasionally of the Legal Aid Board (as it was). My experience there will, I hope, feed one or two answers below.

When a district registry of the Administrative Court was first set up in Cardiff in about 2008 I was in practice in Bristol and had a substantial proportion of its early cases.

PROCEDURAL QUESTIONS

I will divide my answers into:

  • Reply to the review paper
  • Further thoughts on procedure
  • Judicial review and family law
  • Limits to judicial ‘interference’

(1)        REPLY TO REVIEW

(a) the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

My short answer to this is that whether it is called ‘disclosure’ or ‘duty of candour’ they come to much the same thing; but both must be distinguished from public interest immunity (PII). So long as there is a clear basis for PII (whether common law or statute) – and it may be that that must be made statutory in the context of any administrative law bill – then beyond what is covered by any PII claim, the public body should open its file. However, it is important that this be in respect only to information relevant to the claim, in clear terms, so that ‘disclosure’ should not be carte blanche and be relevant only to issues in the judicial review claim.

‘Government’ need be no exception, so long as any relevance rules are written tightly so as not to inhibit progress of case; and not to waste the court’s time. 

(c) on possible amendments to the law of standing;

No comment

(d) on time limits for bringing claims,

I suggest 3 months is about right.

(e) on the principles on which relief is granted in claims for judicial review,

This is substantive law.

(f) on rights of appeal, including on the issue of permission to bring JR proceedings;

There must be a tightly controlled appeal process, as now; with a brief appearance available on permission hearings which could be dealt with by junior judges (see below).

There should also be the ability to applicant to reply to defendant’s summary grounds. My experience was certainly not that defendants were always as scrupulous as they should be about telling the truth to the court. High Court judges always believed the lawyers for the Child Support Agency and Secretary of State (with the honourable exception of such experienced judges as Collins J). They did not always tell the full truth; but to challenge them at the summary grounds stage was more or less impossible.

The Court of Appeal should keep its originating judicial review jurisdiction (Chief Adjudication Officer v Foster [1992] QB 31, [1991] 3 W.L.R. 473; Farley v Child Support Agency [2005] EWCA Civ 869 (a case of mine)).

(g) on costs and interveners.

Protected costs orders – I have read that the prime minister and Home Secretary are opposed to ‘lefty lawyers’ and to ‘do gooders’; but I hope still that the concept of the protected costs order will be retained in any review of the scheme. To lose the PCO idea would be a blot on the extent of the judicial review scheme.

Costs of summary grounds of defence – Similarly, the limit on defendant’s summary grounds costs should be retained, to keep a fair balance between applicant and defendant.

Stream-lining of procedure – That said, I am sure – as I mention below – there are ways procedure can be stream-lined and made more economic for both parties. This will then impact on costs.

(2)        STREAM-LINING PROCEDURE

The procedure for most judicial review is much simpler than most people – including experienced practising lawyers – think. With perseverance it may be possible to make it – in many cases – more simple still. Some thoughts follow.

All judicial review is dealt with by High Court judges; though in practice this may be by circuit judges and QCs sitting as High Court judges. It is a high judicial level which is assured to parties.

Is this necessary? Much of the child support judicial review work I did could have been dealt with, without any derogation to fairness, by district judges trained within the Administrative Court. Would it not be possible for Administrative Court district judges to deal with the paper-work stage of permission? They would know when to refer up, and they could define the level of judge to deal with any restored hearing.

I mentioned limits on disclosure and emphasis on relevance in the previous section.

(3)        JUDICIAL REVIEW AND FAMILY LAW

Below, under ‘Administrative law and family proceedings’, is a slightly abbreviated article on the extent to which administrative law and its principles could apply directly in family proceedings (published in Family Law in August 2020). This might considerably assist in both judicial review and family proceedings to the benefit of the parties, and to the saving of costs and multiplicity of proceedings all around.

For example in Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) (16 October 2009), HHJ Jarman QC, sitting as a High Court judge and related proceedings, the Secretary of State (for the CMEC) refused to join in the parties’ matrimonial proceedings in which the residue of financial relief proceedings remained to be resolved. Both sets of proceedings had to be dealt with in parallel court files in separate buildings at the extra expense to the tax-payer, HM Courts and Tribunal Service and to the parties. (The Smiths also saw their earlier child support proceedings considered by the House of Lords (Smith v Secretary of State for Work and Pensions & Anor [2006] UKHL 35, [2006] 1 WLR 2024, [2007] 1 FLR 166) but that is another story….)

(4)        LIMITS TO JUDICIAL ‘INTERFERENCE’

The role of the judge

The inverted commas above are important. I do not accept that there is any question of judicial ‘interference’ in our society; and I hope that Edward Faulks (as I knew him when we were at school together) would recognise that. Many of those involved in litigation – by definition – will disagree with a judge. Cases such as Oliver v Shaikh [2020] EWHC 2658 (QB) (8 October 2020), Nicklin J show the depth to which that disagreement can go with the very unfortunate His Honour Judge Oliver. Comments such as those of the Daily Mail, as judges being the ‘Enemies of the people’, an attitude unchecked by Faulks’s erstwhile ministerial colleague as ‘Lord Chancellor’, plainly do not help; and that should not be regarded as a political comment.

To attack a judge is cowardly. It is rare that they can defend themselves or answer back (as, in the end, did Judge Oliver) in any real or effective way.

It is important, however, for politicians to understand that our judges frequently defer to Parliament, and accept their subservience to the legislative branch of the three powers. Examples on this point in various public law fields follow.

Law reform: a matter for Parliament

In R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185 the Supreme Court showed itself willing to leave legal professional privilege, in this case legal advice privilege (LAP) – quintessentially a common law doctrine – to Parliament if there was to be reform. A company obtained advice from a firm of accountants on the tax law aspects of a proposed transaction. An inspector of taxes served notices on the company requiring them to deliver to the inspector documents containing information relevant to the company’s tax liability, including material passing between the company and the accountants during the giving of the advice. The claimant company challenged issue of the notices, including on grounds that the material sought was covered by LAP. The judge dismissed the claim. LAP applied only to advice given by a member of the legal profession. The Court of Appeal dismissed the claimants’ appeal.

A seven justice court dismissed the claimant’s further appeal (Lords Clarke and Sumption dissenting). At common law, said the majority LAP was universally understood as applying only to communications between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. The extent of the privilege was clear, consistent and certain. It was allowed for by the rules and practice of the courts and in legislation. If there was scope for reform, that was a matter for Parliament not for the judges.

Towards the end of his judgment (with which Lord Walker agreed) Lord Neuberger – who describes himself generally as “something of a swing vote” judge (p 182) – introduced a section entitled “A policy issue best left to Parliament” as follows:

[61] Apart from these concerns, it seems to me that this appeal gives rise to an issue, possibly a series of issues, of policy, which constitutes an area into which the courts should generally be reluctant to tread. Rather than extending LAP beyond its present accepted boundaries, we should leave it to Parliament to decide what, if anything, it wishes to do about LAP.

Judges not to extend any administrative role beyond what Parliament provided for

Where Parliament had entrusted administration to one branch of the state, judges should not try to extend that role beyond what Parliament had already provided for. This was emphasised in the period prior to Children Act 1989 (CA 1989) when on two occasions, at least, the House of Lords stressed that where parliament had given a job – in this case child care – to the local authority then wardship could not be used judicially to oversee the actions of the social workers. This was explained in the House of Lords in A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948 where a parent had sought to challenge operation of a care order by the local authority. The point returned in Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 where Lord Scarman spoke emphatically of the importance of the need to understand that where Parliament had “entrusted” powers to a public body, the courts cannot exercise any powers it might have to intervene (at 797):

… The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.

This division between state and private individuals was one of the principles on which Children Act 1989 was based. The A v Liverpool principle survives in relation to housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 a family court used a Children Act 1989 shared residence order to put pressure on a housing authority to provide housing for both parents. The House of Lords said this was not permissible. The existence of a shared residence order was a relevant, but it could not be regarded as a determinative factor for the housing authority. A family court, exercising its own jurisdiction under the 1989 Act, could not use the order as a means of exerting pressure on the housing authority to provide housing for a parent irrespective of all the other considerations which a the housing authority must take into account.

The family court has no power to control operation of a housing department. The point came back in the family courts more recently in F v M & Anor [2017] EWHC 949 (Fam), [2018] 2 WLR 178, [2018] 1 FLR 1217 where in a child arrangements order Hayden J was considering a decision on asylum made by the Secretary of State for the Home Department (the ‘Home Office’). He explained the mother’s position in this country as follows, and his powers to differ – if he wanted to do so – from the decisions of officials within the Home Office. He explained this (by quotation from Lord Scarman in Re W (above)) as follows:

[41] … The determination of the refugee status of any adult or child falls entirely within “an area entrusted by Parliament to a particular public authority”. In this case the public authority is the [Home Office].

David Burrows

16 October 2020


[1] ‘Independent Review of Administrative Law (IRAL)’ https://www.gov.uk/government/groups/independent-review-of-administrative-law

[2] The inverted commas here were inserted by the Ministry of Justice; though it is not clear why. To streamline a procedure is a respectable intent

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