The Law Commission's long-awaited report, published last week, has been widely welcomed as a step in the right direction.
And observers are calling on the government for early implementation of the package (see below).'This report represents several small steps in the right direction but we need action on it.
There are already far too many Law Commission reports doing nothing but gathering dust on civil servants' shelves,' said Lee Bridges, research director at the Public Law Project.Ministers could show reinforced commitment to improving standards in public life, in the wake of the setting up of the Nolan committee, by bringing forward an early Bill.'If the government is serious about cleaning out sleaze from the corridors of power, then it should legislate promptly to strengthen judicial review,' argued Mr Bridges, also principal research fellow at Warwick University.Leading counsel agreed this week that scope for advisory declarations by the courts could help ministers in doubt over the probity of key government decisions.The Lord Chancellor's Department, responsible for acting on the commission's recommendations, said th is week: 'Officials will be looking at the report and making recommendations to the Lord Chancellor, but there hasn't been any decision to give it priority yet.'Reacting to the report, barrister Michael Fordham, author of the Judicial Review Handbook, said that changes on standing, legal aid and representative actions contained in the report were attractive.
'But, in my view, it is perhaps unfortunate that they didn't go further on discovery and providing costs out of central funds in public interest cases,' Mr Fordham added.Richard Gordon QC, of 39 Essex Street, a leading expert on judicial review said that it was unwelcome that the commission had not come out more strongly in favour of discovery, which he described as 'essential to any public interest challenge'.'This would have been consistent with the case law requiring respondents to give reasons for their decisions,' he said.Mr Gordon also voiced concern that putting the leave stage on paper could be drawn out interminably leading to an endless to-ing and fro-ing on paper.Organisations which stand to gain most from the commission's proposed reforms were giving the report a broad welcome.Claude Moraes, director of the Joint Council for the Welfare of Immigrants, said: 'The Law Commission has recognised that groups like the JCWI need to be helped to challenge government decisions.
It is explicitly recognising that the growth in judicial reviews is the result of the growth of controversial government policies.'Mr Moraes said he had mixed feelings about the commission not backing a separate jurisdiction for immigration and asylum appeals, as it had for homelessness cases.'We like the political leverage of being able to challenge the home secretary's decisions in the High Court, though this does mean more cost and delay relative to appeals at, say, county court level,' he said.The Child Poverty Action Group's legal officer, David Thomas, said he welcomed the commission's support for public interest actions by pressure groups: 'Often it is simply not practical for individuals to bring cases, particularly after the recent legal aid cuts.
We cannot allow unlawful decisions affecting the lives of thousands of people to go unchallenged.
It is vital that expert organisations such as CPAG should be allowed to challenge ministerial decisions and practices.
The number of such decisions is vast and growing.'Mr Thomas welcomed the proposed change on costs rules, but said that they did not go far enough.Judicial review applications have risen steadily in number over recent years, from 2779 in 1990 to 3635 in 1993.-- 'Administrative law: judicial review and statutory appeals', Law Com No.226, HMSO, £18.75.USER-FRIENDLY FORMULAThe Law Commission's main proposals include:-- Leave stage should become an informal 'preliminary consideration' conducted almost entirely on paper, except where interim relief is sought.-- Judges could seek extra information from the respondent at this stage.-- For a review to proceed it would have to be a serious issue which had adversely affected the applicant or was a public interest matter; it should be prompt unless there are good reasons for a delay of more than three months; other legal remedies should have been exhausted; and judges would have to give brief reasons for refusing at this stage.-- The Latin titles of mandamus, prohibition, and certiorari should be replaced by a mandatory order, a restraining order and a quashing order respectively.-- Interim relief should be available before the preliminary consideration in urgent cases, against government departments and their ministers, and should include declarations, injunctions stays or court or tribunal proceedings.-- The court should have the power to make a restitutory award if satisfied that a writ action started at the same time by the applicant could have had the same result.-- In public interest cases, the court should have the power to award a successful party's costs out of central funds.-- The Legal Aid Board should have the power to take into account public interest factors when considering applications for financial support.-- A separate court or tribunal should be set up to hear homelessness appeals.
No comments yet