The Jurisdictional Boundaries of Judicial Review
Philippa Whipple QC
The Jurisdictional Boundaries of Judicial Review
Seminar Paper Delivered in May 2005 by Philippa Whipple
The starting point
1. The point is made in the pre-action protocol that "Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted" . This reflects what we all know, namely that JR is a remedy of last resort. I am going to examine the boundaries of the last resort principle, as it has been illustrated in recent case law.
Alternative statutory appeal procedure
2. The best (recent) starting point is probably the 2002 case of Sivasubramaniam . There, the CA drew on an abundance of earlier authority to conclude that: "Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused." This passage discloses one key issue which may engage a Court in circumstances where there is an alternative procedure available: namely, whether that alternative procedure is less satisfactory than judicial review. That was the issue considered by the Court of Appeal in the important joined cases of M and G v IAT . These appellants challenged the substantially diminished rights of appeal for asylum seekers, introduced by s 101 of the Nationality, Immigration and Asylum Act 2002. The new system under that Act provided that an adjudicator's decision was open to appeal to the IAT on point of law only, and thereafter was subject to statutory appeal to the single judge of the High Court on the papers. The section stated in terms that "the judge's decision shall be final". M and G both applied for a statutory appeal of the IAT's decision; they also sought judicial review of the IAT's decision, relying on the same grounds as raised in the statutory appeal. They argued that the statutory appeal was both procedurally and substantively inadequate to safeguard the rights of asylum seekers. The Court of Appeal recognised that the purpose of the new, slimline statutory regime was to speed up decision-making in asylum claims. It concluded that the process provided adequate and proportionate protection of the asylum seeker's rights.
3. That was so even though the statutory appeal was undoubtedly narrower than a judicial review would have been: the statutory appeal permitted no oral hearing; and no appeal to the Court of Appeal. Further, the Court of Appeal recognised that it was possible that a judge conducting the statutory review on paper could overlook an arguable point of law.
4. But as a matter of discretion it was proper to decline to entertain the application for JR. The analysis was not that the jurisdiction of the High Court was ousted by section 101; but rather that the jurisdiction should be declined because of the statutory purpose underlying that section .
5. If G and M is a case where the Court refused to entertain the JR at all, there are other cases where the Court has been prepared to adjudicate a JR even though concurrent unexercised rights of statutory appeal exist. A recent illustration of a more relaxed approach to the exercise of that discretion is R (on the application of Cheltenham Builders Ltd) v South Gloucestershire District Council , a case concerning the status of land known as Magpie Bottom in Bristol. The issue was whether it was a village green. The Claimant property developers wanted Magpie Bottom taken off the District Council's register of Town and Village Greens, and commenced two sets of proceedings to achieve this end: the first was an application for judicial review claiming a quashing order in relation to the decision to register the land, a declaration that the land was not a village green and a mandatory order requiring the District Council to remove it from the register; the second was a claim in the Chancery Division for an order under section 14 of the Commons Registration Act 1965, a statutory appeal mechanism, that the register be amended by the removal of the site, and a declaration that it was not a village green. Sullivan J held that the fact that the Claimant could have raised all of his complaints under section 14 did not oust the Court's power to grant JR; and that in the circumstances there was no procedural advantage to the Claimant or prejudice to the Defendant in allowing the actions to proceed concurrently. There was an additional possible benefit in applying for JR in that the Court could, if the applicant were successful, quash the decision of the County Council under challenge, which remedy was not clearly available under the section 14 procedure (although section 14 did enable the register to be amended, and so the difference in remedy seems to have been fairly academic). The two actions were ordered to be heard together, permission having been granted in the JR. The Judge held that to have done otherwise would have been a "pointless waste of time and money for no practical advantage".
6. Similar pragmatism was exercised by Richards J in an application to curb the excessive zeal of the Commissioners of Customs and Excise in seizing goods and vehicles belonging to private persons on their arrival at UK ports, where those people were carrying excess cigarettes and alcohol . The applications were made, first, by Hoverspeed, whose interest lay in the fact that customers were being put off travelling on their ferries, and secondly by certain individuals, most notably Mr and Mrs Andrews, who were complaining about the seizure and forfeiture of goods and the car in which they were travelling. Alternative procedures were available to Mr and Mrs Andrews in the magistrates court, the VAT and Duties Tribunal and in the County Court. However, it was clear that the claimants together wished to mount a challenge to the broad regime operated by the Defendant, within which lay matters of EC law and human rights, and that it would make no sense to fragment those various issues between the several jurisdictions. The Judge decided that"I am satisfied that to chop up into little bits a case of this kind would impede the proper assessment of the impact of the regime as a whole". The Judge gave permission even though there were issues of fact which lay at the heart of the case.
7. In another application for JR brought by various traders involuntarily involved in a VAT "carousel fraud", Moses J acknowledged that the central issue in the case, namely the VAT liability of the mobile phones which had been the subject of the carousel fraud, was properly within the statutory jurisdiction of the VAT and Duties Tribunal. However, there were other issues raised by the claimants: (1) reliance on an extra statutory concession, (2) an issue whether amounts owed to Customs could be offset against input tax claims, and (3) the effect of alleged assurances given by Customs to those concerned. These latter issues did properly fall within the jurisdiction of the Administrative Court. In the circumstances, the Court was mindful of the "most speedy and economic way of covering the matters raised", and so allowed the matter to progress by way of judicial review (in fact, then making a reference to the European Court of Justice) .
8. This welcome flexibility, entirely consistent with the spirit of the CPR, was not unfortunately on display in a judgment of Bennett J when he refused permission to a company which had long been involved in public procurement contracts for the MoD and which had lost out on a contract, it alleged, by reason of unfair and irregular procedures adopted by the MoD. The company was called Cookson and Clegg, and it had already issued proceedings under Part 7 relying on breaches of the Public Supply Contracts Regulations 1995. The Judge concluded that in commercial disputes it was wrong to have two sets of proceedings running in parallel with potential duplication of time and costs. That much can be agreed. But what about the possibility, Sullivan-style, of listing both sets of proceedings together before the same Judge - perfectly possible given that both were progressing in the QBD and related to the same subject matter. Instead, this claimant was prohibited from arguing its public law reasonableness points altogether, or indeed seeking a public law remedy. I venture that this decision is the odd one out.
9. So far so good: the parameters are tolerably clear. The Administrative Court is a court of residual jurisdiction, but it has discretion to review decisions, even where an alternative statutory appeal is available.
Private law issues
10. However, there are specific areas where that flexible approach is not or cannot be shown. The first is where the issues do not arise in the public law sphere at all, but rather in private law. One recent case illustrates the problem: R (Finian Manson) v MoD .
11. Finian Manson had been a member of the Territorial Army for 34 years. He wanted to be paid a pension for his services, and thought he was entitled to one under Council Directive 97/81/EC containing the Framework Agreement on Part-time work, implemented into domestic law by the Part Time Workers Regulations . The Employment Tribunal had dismissed his claim on their finding that he was not within the regulations. He had appealed to the EAT, which had dismissed his appeal, stating along the way that any argument based on the regulations being ultra vires was not properly addressed to the EAT but should go by way of judicial review. Fortunately, Mr Manson had already issued an application for judicial review, which came before Moses J.
12. Unfortunately, Moses J concluded that the matter was a private law one, and that the Employment Tribunal, where Mr Manson had started, had ample jurisdiction to deal with all issues arising out of the Framework Directive including deciding whether the regulations were ultra vires. Moses J held that the Administrative Court had no jurisdiction to hear these applications, because they raised essentially private law matters.
13. The point is that if issues raised in a judicial review application are properly private law issues, there is no jurisdiction in the Administrative Court to deal with them: it is not a matter of discretion .
Other proceedings ongoing
14. The second category of cases where applications for JR will be refused are those where there are proceedings in another forum already underway or imminent. This is not quite the same thing as there being an alternative avenue for appeal. It is rather that the application for JR in the course of subsisting proceedings is premature.
15. This most commonly occurs in the criminal sphere. The basic position was explained by the House of Lords in ex parte Kebilene , that save in exceptional circumstances, the decision to prosecute an individual is not amenable to JR.
16. The Court of Appeal has recently considered an application for JR by a defendant who contended that his prosecution for drink driving should be stayed, because the breath testing equipment used was unreliable. The Court held that it had no jurisdiction to allow the application. That was because the magistrates themselves had not yet ruled on whether the print-out from the particular breath testing equipment should be excluded, and the appropriate course was to await the end of the trial and then appeal by way of case stated, if necessary: R (Timothy Hoar-Stevens) v Richmond-Upon-Thames Magistrates Court .
17. A similar point was made against Mr Pepushi, a Yugoslav asylum seeker, who sought to challenge s 31 of the Asylum and Immigration Act 1999 by way of judicial review, while trial for using a false passport was pending. The Court refused his application, albeit permission was granted and the point was considered substantively. Thomas LJ in his closing remarks deprecated recent attempts to obtain decisions relating to the prospect of future prosecution, citing Pretty and Rusbridger as examples of this unwelcome trend, and confirmed that the proper course is to make the challenge in the course of procedures in the Crown Court .
18. The Administrative Court (Newman and Toulson JJ) declined to adjudicate an application for JR - although recognising that it did have jurisdiction - in R (Paul Rackham Limited) v Swaffham Magistrates Court and the Environment Agency . The basis of its jurisdiction was established authority which allows the Court to hear applications for judicial review in respect of abuse allegations leading to an application that criminal proceedings should be struck out. (The Court in Hoar-Stevens had concluded that the well established line of authority did not apply, which led that court to conclude it had no jurisdiction.) The magistrates in that case had declined to stay proceedings brought by the Environment Agency for alleged offences in connection with controlled waste, committed in 1999. In 1999, and in line with a Court of Appeal authority which defined waste, the defendant took the view that he was not dealing with controlled waste at all but rather with recovered products. In 2002 the European Court of Justice delivered judgment in ARCO Chemie Nederland Ltd , which substantially widened the meaning of "waste" so as to include the material in question. The defendant complained that his prosecution was an abuse of process, because the Environment Agency was seeking to give retrospective effect to this development in the law. The Administrative Court concluded that the case itself was essentially fact-driven. The appropriate response was to allow the case to proceed to trial; and for any appeal to be made against conviction, if necessary. This was a decision based on discretion and not absence of jurisdiction.
19. By way of summary, issues concerning jurisdiction arise frequently in applications for JR. As we have seen, the Court has a wide discretion to hear cases even if there is an alternative appeal mechanism available. Whether it will exercise that discretion in a claimant's favour depends largely on convenience and other practical considerations. However, there are limits beyond which the Court will not go. Importantly, the Court will decline permission where it perceives the application to be abusive, which is the case when the alternative statutory appeal mechanism itself indicates that the appeals, once exhausted, should be the end of the road. Further, great reluctance is shown to interfere with criminal proceedings which remain afoot, and private law cases simply fall outside the Court's jurisdiction altogether.