Lexis®PSL Public Sector Newsletter

     

    Introduction | Features | Cases | FYI


    Introduction

    This edition is brought to you in partnership with Morayo Fagborun Bennett of Hardwicke.

    Morayo is a barrister specialising in property and public law. Her extensive social housing experience is the bedrock of a strong residential L&T practice.

    She is uniquely placed to handle complicated issues arising in mixed use property developments, whether involving residential, commercial or social housing units, thanks to her background in both local government and public law.

    Why do we need judicial review?

    Judicial review is the process by which the courts review the lawfulness of a decision or failure to act by a public authority. It ensures that the executive acts according to law and is thus an important form of control on the executive.

    As was noted in the Public Law Project’s October 2015 report: The Value and Effects of Judicial Review: the Nature of Claims, their Outcomes and Consequences a number of misleading assumptions about judicial review are prevalent:

    • the use of judicial review has grown because of claimants abusing the system
    • judicial review simply makes it more difficult for public bodies to deliver public services efficiently
    • litigation is expensive and rarely alters the decisions of public bodies

    These assumptions have led to changes in the funding and procedural rules. However, access to the High Court’s inherent supervisory jurisdiction remains necessary to ensure that cases raising issues of public and legal importance continue to be heard. Concerns have been expressed and continue to be expressed about the impact of changes to the rule of law.

    It is interesting to note that of the judicial review challenges issued following the EU referendum, one is being funded by legal aid (Raymond McCord), one by unnamed supporters (The People’s Challenge) and the remainder by individuals and groups with private means. The recent challenge brought by The People’s Challenge raised over £125,000 for legal costs funded by a crowd funding website. This shows the way that judicial review claims are evolving to meet the challenges brought by restrictions to funding to ensure that alternative sources of funding for these challenges are available. A claim which is funded by ‘the people’ does not have to meet the merits or benefits test that a legally aided case must meet.

    It is important to ensure that changes to judicial review funding and access to the courts do not unduly restrict access to judicial review or the rule of law.

    This newsletter considers some of the key changes in the field of judicial review in the new term.

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    Features

    Feature I: A summer of judicial review reform

    Summer 2016 has been a time of intense change in judicial review in England and Wales. As anticipated since the introduction of the Criminal Justice and Courts Act 2015 (CJCA 2015), the government has introduced changes to the conduct of and payment for judicial review proceedings. Fees for bringing judicial review applications have also been increased, although not by as much as had been anticipated

    This feature outlines some of the key updates.

    New Administrative Court Judicial Review Guide

    On 25 July 2016, a new Administrative Court Judicial Review Guide 2016 was published with the aim of being a user friendly means of clarifying judicial review process and procedure.

    The guide is split into 4 Parts:

    • preliminary matters
    • the claim
    • specific practical points
    • ending the claim

    The guidance consolidates statutory provisions, rules of procedure, practice directions and case law on the procedural aspects of judicial review in the Administrative Court. The guide is designed to enable efficiency in the Administrative Court by providing targeted guidance to parties in order to tackle bad practices. Sanctions may apply to parties if they fail to comply.

    Further reading:

    Administrative Court Judicial Review Guide

    Administrative Court Judicial Review Guide 2016—making life easier?

    Judicial review fee increases

    The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016 SI 2016/807 made on 22nd July 2016, also came into force on 25th July 2016 increasing the fees payable in certain judicial review proceedings.

    SI 2016/807 amends the relevant provisions of the Civil Proceedings Fees Order 2008, (SI 2008/1053), and the Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011, SI 2011/2344.

    The increased fee for an application for permission to apply for judicial review is £154. For an application for urgent consideration made other than when lodging the claim form the fee remains at £255. Full details are set out in the revised Orders.

    Further reading:

    Court fees schedule

    Judicial review costs orders and CPR changes

    On 8 August 2016, Criminal Justice and Courts Act 2015 (Commencement No 4 and Transitional Provisions) Order 2016, SI 2016/717, brought into force a number of provisions of the CJCA 2015, including sections 88 to 90 of Part 4, which deal with costs capping orders in judicial review cases including environmental cases and creates a new type of costs capping order for judicial review claims.

    CPR 3, CPR 46 and CPR PD 46 were amended accordingly to make provision for applications for award of and variation of judicial review costs capping orders (JRCCOs), which replace protective costs orders for judicial review proceedings issued on or after 8 August 2015.

    Further reading:

    Costs for judicial review—protective costs orders (PCOs), judicial review costs capping orders (JRCCOs) and interveners

    CPR changes in August 2016—judicial review costs capping orders

    Tribunal proceedings

    Also on 8 August 2016, the provisions of CJCA 2015 sections 64 to 65, and 84(4) to 84(6) came into force.

    Section 64 allows the Upper Tribunal to grant a certificate which will permit a party to apply to the Supreme Court for permission to appeal by way of a leapfrog appeal straight from the Upper Tribunal to the Supreme Court. Section 65 makes similar provisions in the employment tribunal.

    Sections 84(4)—(6) provide that the Upper Tribunal must consider the question of whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred when considering whether to grant relief on an application for relief.

    Further reading:

    Judicial review in the Upper Tribunal

    Defending a claim for judicial review in the Upper Tribunal—checklist

    Financial information in judicial review

    Sections 85 and 86 of the CJCA 2015 which are not yet in force, provide a statutory framework whereby an applicant in a judicial review must provide the court with any information about the financing of the application that is specified in rules of court.

    On 7th July 2016, the Ministry of Justice published its response to its consultation on proposals for rules concerning the financial information required in applications for judicial review and on costs capping orders. The financial threshold for declaration of third party funding under sections 85 and 86 CJCA 2015 will be £3,000 rather than £1,500 as envisaged. The government was satisfied with its proposals regarding the procedure for the new costs capping orders.

    The government had initially anticipated that there would be a requirement for a claimant to specify financial information about funding for the judicial review to the court prior to the grant of permission but not to the other parties. Further consultation took place this summer as to whether other parties to the proceedings should be provided with the financial information obtained under sections 85 and 86 CJCA 2015. The new survey closed on 18th August 2016.

    Further reading:

    MoJ Consultation—Reform of Judicial Review: Proposals for the provision and use of financial information

    Further CPR changes anticipated in October 2016

    The Civil Procedure (Amendment No.3) Rules 2016, SI 2016/788 set out further CPR changes which came into force on 3 October 2016. The main change is the replacement of CPR 52 (appeals) with a new Part 52 and consequential changes to other parts of the CPR and transitional provisions.

    Further reading:

    CPR changes–October 2016

    Appeals to the Court of Appeal–stemming the flow

    Amendments to appeals–3 October 2016

    Feature II: Brexit-related judicial reviews

    On 23 June 2016, the UK held a referendum on its membership of the EU in which 51.9% of votes were cast in favour of leaving the EU. Following the referendum, a number of judicial reviews have been launched to challenge the government’s response and the constitutional requirements for securing the UK’s exit from the EU (aka Brexit).

    England

    In summer 2016, a number of groups and individuals brought judicial review challenges to Brexit. Deir dos Santos (represented by Edwin Coe LLP) argued in his judicial review claim that the result of the EU referendum is not legally binding in the sense that it is advisory only and there is no obligation on the government to give effect to the referendum decision. A similar challenge was brought by The People’s Challenge, a crowd funded initiative represented by Bindmans LLP.

    In July 2016, Mishcon de Reya LLP announced that they were issuing a judicial review challenge to determine the procedural steps necessary for the UK to Trigger Article 50 of the Treaty on European Union (TEU) in line with the UK constitution. They state that:

    ‘The key argument being made is that the correct constitutional process of parliamentary scrutiny and approval, as well as consultation with the devolved administrations in Scotland and Ireland and the Welsh Assembly, needs to be followed otherwise the notice to withdraw from the EU would be unlawful and subject to legal challenge.’

    On 19 July 2016, during a preliminary hearing the case of Gina Miller, the founder of investment management group SCM Private was ruled as the lead case in the judicial review challenge. The court ruled that other challengers including Mr Deir dos Santos and The People’s Challenge would have the option to be interveners or interested parties in the claim.

    Following the ruling on 28 September 2016 by Mr Justice Cranston that the parties' detailed grounds (including the government's defence) may be published prior to the October hearing, those arguments have been made available online. The judicial review hearing to determine whether Parliament has to be consulted before Article 50 TEU is triggered is listed for 13th October 2016.

    Northern Ireland

    56% of Northern Irish voters in the EU referendum voted to remain in the EU. Particular concerns about Brexit have been raised because Northern Ireland shares a border with the Republic of Ireland, an EU Country. Northern Ireland also receives EU grants and funding for cross-community projects to support relations between nationalist and unionist communities.

    On 11 August 2016, a judicial review case was brought in Northern Ireland by Raymond McCord, the father of a loyalist paramilitary murder victim. He argues that Brexit will undermine the UK's domestic and international treaty obligations under the 1998 Good Friday peace accord. The case is being funded by legal aid and he is represented by McIvor Farrell.

    On 19 August 2016, a cross-community coalition of politicians in Northern Ireland brought a separate claim for judicial review arguing that the Northern Ireland Assembly must approve plans to leave the EU due to the detrimental impact it may have on Northern Ireland. Members of the Northern Ireland Assembly (MLAs) claim that it would be illegal to trigger Article 50 TEU without first securing parliamentary approval. Those involved include Alliance Party former leader David Ford; Green Party leader Steven Agnew; Social Democratic and Labour Party leader Colum Eastwood; senior Sinn Fein; Stormont Assembly member John O'Dowd; former head of the Progressive Unionist Party Dawn Purvis; ex-Equality Commission member and disability rights activist Monica Wilson OBE and the Committee on the Administration of Justice human rights group. They argue that consent of the Northern Ireland Assembly is required before Article 50 can be triggered.

    Mr Justice Maguire is hearing both of the Northern Ireland challenges. There was a preliminary hearing at the High Court in Belfast on 22 September 2016. Following the issue of a notice of devolution, the Attorney General for Northern Ireland John Larkin QC is likely to become involved in the case.

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    Cases

    In case you missed it....

    The Supreme Court has handed down two significant judicial review cases during this summer.

    Case I : R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35,[2016] All ER (D) 173 (Jun)

    Abstract

    The Supreme Court, by a three to two majority, refused to set aside the House of Lords’ judgment in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2008] All ER (D) 219 (Oct). In the 2008 judgment, the House of Lords had rejected a challenge to the UK government’s decision to prohibit the presence on the Chagos Islands of their former inhabitants, whom it had previously removed to make way for a US military base. In this judgment, the Supreme Court held that documents subsequently disclosed by the Foreign and Commonwealth Office would not have led the House of Lords to conclude that the government, in deciding to prohibit the islanders, should not have relied on a study which found that resettlement of the former inhabitants was not feasible.

    Summary

    Mr Bancoult requested the Supreme Court to set aside its earlier judgement on grounds that material non-disclosure by the Foreign Office led to an unfair hearing.

    The Supreme Court held that it was neither probable nor likely that due disclosure would have resulted in a different outcome and therefore refused to set aside the earlier judgement.

    Comment

    A decision can be set aside not on the grounds that it is wrong in law but on grounds that the Defendant has failed in breach of his duty of candour to disclose relevant documents containing information which would have been likely to affect the factual basis upon which the court proceeded. The court will determine whether the failure to disclose the relevant information subjected the other party to an unfair procedure and if so, whether a significant injustice has “probably” occurred for which there is no alternative effective remedy before setting aside a previous judgement. However, if there is no probability, likelihood, prospect or real possibility of a significant injustice, then the court will not set aside a decision.

    Further reading:

    Bancoult revisited—reinforcing the importance of full disclosure

    Case II : R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] All ER (D) 53 (Jul)

    Abstract

    The Supreme Court, in allowing the appellant's appeal, held that a draft order excluding a specific group of people from the right to receive civil legal services in relation to an issue on the ground of personal circumstances or characteristics (namely those not lawfully resident in the UK, Crown Dependencies or British Overseas Territories) which had nothing to do with the nature of the issue or services involved or the individual's need or ability to pay for the services was not within the scope of the power accorded to the respondent Lord Chancellor and was therefore ultra vires.

    Summary

    The Lord Chancellor sought to introduce by way of secondary legislation a residence test for eligibility for civil legal aid by amending Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 so that other than in exceptional circumstances, individuals who failed a residence test would be removed from the scope of those cases that under Part 1 could be offered legal assistance. The changes would have meant that in most cases, an applicant would have to be lawfully resident at the time of making the application and to have been lawfully resident in the UK for a 12 month period at any point in the past before making an application for civil legal aid. The claimant sought judicial review of that proposal to amend LASPO by way of statutory instrument on the basis that it was outside the Lord Chancellor’s power under sections 9(2) and 41 of LASPO and was discriminatory.

    The Supreme Court held that the Lord Chancellor’s attempt to introduce a residence test was unlawful. The exclusion of a specific group of people from the right to receive civil legal services in relation to an issue on the ground of personal circumstances or characteristics (namely those not lawfully resident in the UK, Crown Dependencies or British Overseas Territories) which has nothing to do with the nature of the issue or services involved or the individual's need or ability to pay for the services is simply not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and nothing in section 41 undermines that contention.

    Commentary

    This decision underlines the necessity of ensuring that reforms to judicial review do not undermine the ability of individuals and organisations like the Public Law Project, a national legal charity, to challenge the lawfulness of decisions by public authorities and/or prevent a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned.

    Would an organisation like the PLP in future have to disclose the funds obtained from third parties to pursue claims such as these? Would they apply for and secure JRCCOs to ensure that legal costs for which they are liable are limited to £5,000 where proceedings are in the public interest and they may have to withdraw the application in the absence of such an order?

    Further reading:

    Legal aid and the residence test

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    FYI

    Judicial review in practice: There are reliable tools to help you maximise opportunities and manage risk

    Lexis®PSL has a wealth of practical guidance on judicial review:

    PSL Practice Notes, Precedents and Checklists meeting a wide variety of needs are just one click away including resources on topics specific to judicial review proceedings in the Upper Tribunal and in Scotland.

    Further reading is also available across Lexis®PSL practice areas covering specialist subjects such as immigration and planning judicial review.

    Further reading from this edition

    Practical guidance

    Court fees schedule

    Costs for judicial review—protective costs orders (PCOs), judicial review costs capping orders (JRCCOs) and interveners

    Judicial review in the Upper Tribunal

    Defending a claim for judicial review in the Upper Tribunal—checklist

    Analysis

    Administrative Court Judicial Review Guide 2016—making life easier?

    CPR changes in August 2016—judicial review costs capping orders

    CPR changes—October 2016

    Bancoult revisited—reinforcing the importance of full disclosure

    Legal aid and the residence test

    Legislation and procedural rules

    Criminal Justice and Courts Act 2015

    The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016, SI 2016/807

    Civil Proceedings Fees Order 2008, SI 2008/1053

    Upper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011, SI 2011/2344

    The Criminal Justice and Courts Act 2015 (Commencement No 4 and Transitional Provisions) Order 2016, SI 2016/717

    The Civil Procedure (Amendment No.2) Rules 2016, SI 2016/707

    The Civil Procedure (Amendment No.3) Rules 2016, SI 2016/788

    Cases

    R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35, [2016] All ER (D) 173 (Jun)

    R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] All ER (D) 53 (Jul)

    Further reading

    Administrative Court Judicial Review Guide

    MoJ Consultation—Reform of Judicial Review: Proposals for the provision and use of financial information

    The Value and Effects of Judicial Review: the Nature of Claims, their Outcomes and Consequences

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