Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘judicial review

Improving Immigration and Asylum procedures

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Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.

For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.

However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.

As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)

In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to  identify difficulties and recommend practical change.

The report is quite detailed. In outline, it argues:

Home Office refusal decisions The Working Party’s view is  that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;

The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;

Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.

Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.

Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.

A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.

Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.

The above note has been adapted from the report which is available at https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/

 

 

 

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Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union

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One of the most important legal challenges to the exercise of prerogative power has recently been made in the case of  R (Miller) v Secretary of State for Exiting the European Union. This is the case that challenged the Government’s view that it could trigger Article 50 of the Treaty of the European Union without the necessity for a vote in Parliament. This is a case of very considerable constitutional importance. I provide here links to a  summary of the case, and  to the whole judgement.

The decision of the Administrative Court is being appealed go the Supreme Court. The outcome of that hearing is expected early in 2017.

A summary of the decision can be found by clicking on the following link:

 

The full judgement is at

While it was accepted that the Government can use its prerogative power to enter international treaties, in the case of the European Union, the relationship between the UK and the EU was underpinned by the European Communities Act 1972, which had been enacted by the UK Parliament. The judges accepted that, if the UK were to exit the EU, this would inevitably result in rights and obligations brought into the UK’s domestic law by the Act of 1972 being altered.

The judges held that the Sovereignty of Parliament was the most important  principle in the UK’s constitutional arrangements. While the Parliament could make or unmake any law, it was not permissible to use prerogative powers to change law enacted by Parliament. Thus, in the current situation, it was not permissible to use  prerogative power to trigger the start of the process of leaving the EU.

Sections of the UK Press saw this decision as undermining the will of the people (as expressed in the result of the referendum on leaving the EU). However, a more sensible view is that in this decision the Court was deciding  that the fundamental principle of the Sovereignty of Parliament should be upheld and that it was the proper function of the Court – which is independent of Government – to rule that in these circumstances the Sovereignty of Parliament was not to be undermined by the use of prerogative power.

 

 

 

Written by lwtmp

November 6, 2016 at 8:21 am

Busting the myths of judicial review: new empirical evidence on outcomes and value for money

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UKAJI

This post summarises the findings of a study into the effects of judicial review (JR) in England and Wales which was funded by the Nuffield Foundation and undertaken by the Public Law Project and the University of Essex, with Maurice Sunkin as the Principal Investigator.
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By Varda Bondy, Lucinda Platt and Maurice Sunkin

Overview

The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences concerns the use and effects of judicial review (JR) in England and Wales, primarily from a claimant perspective. Judicial review provides a route for obtaining legal redress against public bodies, including in human rights cases, when no other suitable remedy is available. It also provides a means by which public bodies may be held accountable for the legality of their actions. In these ways JR gives practical effect to the rule of law.

The research:

  • builds on previous work to throw…

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Written by lwtmp

October 26, 2015 at 10:15 am

Judicial review: new consultation

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Decisions on the reform of Judicial Review were taken by the last Coalition Government.

This consultation seeks views on detailed proposals for court and tribunal rules which are needed to bring into effect some of the changes made to juducial review procedures. Thus the consultation paper under review here sets out proposals:

  • that a declaration of funding sources is required on an application for permission to bring judicial review;
  • that details of third party funding or likely funding in connection with an application for judicial review, need not be provided where the funding is below a threshold of £1,500; and
  • that a more detailed picture of the applicant’s financial circumstances is required on application for a costs capping order than on application for permission

The Government argues that these proposals will limit the potential for third party funders to avoid their appropriate liability for litigation costs.

It  also intends that the new rules will ensure that when costs capping orders are made – limiting or abolishing a party’s costs liability – they are made in appropriate cases.

Details of the Consultation, which runs until mid September 2015, are at https://consult.justice.gov.uk/digital-communications/reform-of-judicial-review-proposals-for-the-provis

Written by lwtmp

July 26, 2015 at 2:46 pm

Posted in chapter 6

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The changes to Judicial Review – Criminal Justice and Courts Act 2015

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Despite considerable hostility from lawyers, the Coalition Government did enact important changes to the rules relating to Judicial review. These are contained in Part 4 of the Criminal Justice and Courts Act 2015. Suggestions that, had the outcome of the General Election been different, some of these changes might have been repealed, are obviously no longer on the table.

It should be remembered that important structural decisions had been taken in relation to Judicial Review well before these latest provisions were enacted. In particular,

  1. Immigration cases had been largely removed from the Administrative Court and transferred to the Upper Tribunal.
  2. Planning cases were to be dealt with by a new specialist Planning Court.

The provisions in the latest Act are arguably more technical in character. The actual impact of the changes will not emerge until they have been in operation for some time.

The changes, in outline, are as follows:

Section 84.  Limiting the discretion of the court

In judicial review cases the courts have always exercised discretion over whether or not to provide a remedy (“relief”). In practice, the courts have in the exercise of that discretion refused to provide relief where there would have inevitably been no difference to the outcome of the decision over which judicial review was sought, even if the reason which led to the bringing of a judicial review had not occurred.

Section 84 takes this further by providing that  relief must not to be granted and permission to seek that relief must not to be granted where the court considers the conduct complained about would be highly likely not to have resulted in a substantially different outcome for the applicant.

The Explanatory Notes to the Act offer the following example:

A public authority might fail to notify a person of the existence of a consultation where they should have, and that person does not provide a response where they otherwise might have. If that person’s likely arguments had been raised by others, and the public authority had taken a decision properly in the light of those arguments, then the court might conclude that the failure [to notify the particular person seeking JR] was highly unlikely to have affected the outcome.

Thus the historic discretion of the court is – under the new rules – has been limited by these stricter requirements.

However, the section gives back some discretion to the  court in that where the court considers that it is appropriate to grant relief or permission for reasons of exceptional public interest it may do so. If the court relies on this exception, it must certify that it has done so. These rules apply equally to the Upper Tribunal.

The unknown factor at the moment is the extent to which these new provisions will themselves generate litigation, in particular on the question of what is or is not ‘exceptional public interest’.

Sections 85 and 86. More financial information about funding of cases and the award of costs

Before these new provisions were enacted the position was as follows. Section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007, gave the High Court, the Court of Appeal and the Upper Tribunal  wide powers in respect of awarding costs. This extended to the power to award costs against any person who is not a party to a case. This might include a person who, although not a formal party to a claim, provides financial backing to the claimant and is seeking to drive the litigation for their own purposes. Similarly, where a “shell company” is created to bring the judicial review, whilst the directors of the company are not parties, they may be both funding and driving the litigation so it may be appropriate to make a costs award against them. However, there was no general requirement for an applicant to reveal the source of the funding he or she is receiving for the judicial review proceedings which may mean that it is difficult for the court to identify against whom costs orders should be made.

Section 85 stipulates that where an applicant applies to the High Court or the Upper Tribunal for permission to proceed with a judicial review under the law of England and Wales, the High Court or Upper Tribunal cannot grant permission unless the applicant provides specified information about the financing of the judicial review.The specified information requirements are set out in the Civil Procedure Rules Part 54.

Section 86 provides that when making costs orders under section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007 the High Court, the Court of Appeal and Upper Tribunal should have regard to the information provided by the applicant and should consider making costs orders against those who are not a party to the judicial review.

Section 87. Interveners and the payment of costs

Before section 87 was enacted, under the Civil Procedure Rules any person who is interested in the issues being considered in a judicial review case can seek permission from the court to intervene in the case, usually by filing evidence or making representations. At the end of the judicial review case the court considers who should bear the costs that arise from any intervention.

The courts have powers under section 51 of the Senior Courts Act 1981 to make an award of costs against a person who is not a party to a claim such as an intervener.

In making this decision, section 87 establishes two presumptions. (These apply only to cases in the Administrative Court or the Court of Appeal – not the Upper Tribunal):

  • first that those who apply to intervene in a judicial review case will have to pay their own costs and
  • secondly that, on the application of a party, if one or more of four specified conditions has been met, the intervener must pay any costs which their intervention, has caused that party to incur.

The four specified conditions are:

a) the intervener has acted, in substance, as the sole or principal party – for example, where the intervener drives the judicial review taking on the proper role of one of the parties;
b) the intervener’s evidence and representations to the court, taken as a whole, have not been of significant assistance to the court – for example, where some of the points the intervener makes are helpful but on the whole the evidence and representations are not helpful;
c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to determine the issues in the case – for example, where the intervener uses a significant portion of the time in court to make arguments not related to the issues in the case; and
d) the intervener has behaved unreasonably – for example, where the intervener makes overlong, unnecessary submissions which extend the time taken for the hearing.

Neither presumption  applies where the court considers there to be exceptional circumstances which would make it inappropriate.

It should be noted that where the court invites a person or body to intervene in a JR case, these presumptive rules do not apply; the new  rules only apply where the intervener has applied to intervene in the case.

These provisions were of great concern to a number of NGOs who frequently assist the court on questions that arise in key JR cases. At present, it seems as though agencies with relevant expertise who can add value to JR proceedings should escape the costs sanctions. But again this is a matter that can only be assessed in the light of experience.

Sections 88 – 90. Limiting the use of ‘costs-capping’ orders

A costs capping order is an order of the court which limits the costs which a party may recover from another party at the conclusion of the case. Where such an order exists, it has the effect of mitigating the impact of the normal rule that the loser in litigation pays the winner’s costs.

In judicial review cases, a particular sort of costs capping order, known as a protective costs order, was developed by the courts. Here, costs would typically by capped on an “asymmetric” basis. Thus,  the amount recoverable by a successful defendant from the applicant would be capped at a lower level than the amount recoverable by a successful applicant from the defendant (which may not be capped at all). If such an order has been made and the applicant is unsuccessful in the proceedings to which the order applies, the applicant will only be liable to pay the successful defendant’s costs up to the amount specified in the order, and the defendant will have to cover any balance of its legal costs itself.

The effect of these rules was to potentially increase the cost to public bodies who were defending judicial review proceedings.

When making an order capping the applicant’s costs liability, the court may also include a “cross-cap”, limiting (generally at an amount rather higher than the cap on the applicant’s liability) the amount of costs the defendant would be liable to pay the claimant if the claim succeeds. This meant that an unsuccessful defendant would only be liable to pay the successful applicant’s costs up to the amount specified in the order and the applicant would cover any remaining costs he or she had incurred. But the potential cost burden on the defendant would be greater than the potential cost burden on the applicant.

As noted above, protective costs orders were developed by the courts. The principles governing when and on what terms they should be made were re-stated by the Court of Appeal in the case of R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. The Corner House principles provided for protective costs orders to be for exceptional circumstances in cases concerning issues of public importance. However, over time their use has widened.

Sections 88 – 90 replace the judge-made rules with a statutory code.

The heart of section 88 is in subsections 6 – 8. These provide:

1 The court may make a costs capping order only if it is satisfied that—

  • the proceedings are public interest proceedings,
  • in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings, and
  • it would be reasonable for the applicant for judicial review to do so.

2 The proceedings are “public interest proceedings” only if—

  • an issue that is the subject of the proceedings is of general public importance,
  • the public interest requires the issue to be resolved, and
  • the proceedings are likely to provide an appropriate means of resolving it.

3 The matters to which the court must have regard when determining whether proceedings are public interest proceedings include—

  • the number of people likely to be directly affected if relief is granted to the applicant for judicial review,
  • how significant the effect on those people is likely to be, and
  • whether the proceedings involve consideration of a point of law of general public importance.

Section 89 sets out the factors the court must consider when making a costs capping order. These are:

  • the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties;
  • the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial review;
  • the extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted to the applicant for judicial review;
  • whether legal representatives for the applicant for the order are acting free of charge;
  • whether the applicant for the order is an appropriate person to represent the interests of other persons or the public interest generally.

The section also provides that if an order is made capping the costs which the applicant is liable to pay in the event that he loses, the court must also make an order capping the costs the defendant is liable to pay if he loses.

Section 90 enables environmental cases to be excluded from the codified regime provided for in these sections as such cases are governed by a separate regime arising from the Aarhus Convention and the Public Participation Directive.

Sections 91-92 Amendments to the rules relating to planning decisions

These sections, with Schedule 16 of the Act make detailed changes to the ways in which challenges to planning decisions may be made and the time periods within which such challenges must be made.

Written by lwtmp

June 17, 2015 at 11:23 am

Judicial review reform – policy announcements and further consultations

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Following the consultation on Reforming Judicial Review, launched in December 2012, and despite widespread opposition, in May 2013 it was announced that the Government would:
• Introduce a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.
• Ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit.
• Halve the time limit for applying for a judicial review of a planning decision from three months to six weeks.
• Reduce the time limit for applying for a judicial review of a procurement decision from three months to four weeks.
The first of these changes is awaiting implementation. The other changes came into effect in July 2013. In addition the Government is contemplating separate proposals which would see the fee for a Judicial Review application increase from £60 to £235.

In September 2013, the Government published a further consultation paper on the reform of judicial review.
It noted that the bulk of immigration and asylum cases would no longer go to the Administrative Court, but to the Immigration and Asylum Chambers in the Tribunals Service.

The paper argues that unreformed judicial review has three negative impacts:
• It inhibits economic development by causing delay to major projects;
• It is used by campaign groups as a political tool; and
• It adds to the cost of implementing executive decisions.
Not surprisingly each of these arguments is hotly disputed by the opponents of reform.

The new consultation requests views in six areas:
• planning challenges, and whether these should be sent to a new Planning Chamber within the Upper Tribunal, with specialist planning judges;
• the question of standing, i.e. who is entitled to apply for judicial review. It is noted that any changes will have to reflect the Aarhus Convention, which gives organisations who promote environmental issues and certain individuals the right to make challenges on environmental issues;
• how the courts deal with minor procedural defects, and whether this can be improved;
• the use of judicial review to resolve disputes relating to the public sector equality duty;
• whether the current arrangements for costs provide the right financial incentives, including legal aid; and
• the scope for making greater use of “leapfrogging” orders, so that appropriate cases can move quickly to the Supreme Court, cutting out the Court of Appeal.

Announcements on the outcome of these proposals will be published in late 2013-early 2014.
Source: adapted from  https://www.gov.uk/government/news/specialist-planning-court-proposed-to-boost-uk-business and https://consult.justice.gov.uk/digital-communications/judicial-review

The views of the Secretary of State on the use of JR by pressure groups can be found at http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html

Written by lwtmp

October 24, 2013 at 8:48 am

Posted in chapter 6

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