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You are here: BAILII >> Databases >> The Law Commission >> Judicial Review And Statutory Appeals (Report) [1994] EWLC 226(2) (09 September 1994) URL: http://www.bailii.org/ew/other/EWLC/1994/226(2).html Cite as: [1994] EWLC 226(2)

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PART II GENERAL CONSIDERATIONS

Public Policy^[1]

2.1      The way in which individual aspects of the supervisory jurisdiction by way of judicial review operate in practice, most particularly in relation to procedural exclusivity,^[2] time limits^[3] and interim relief,^[4] shows that policy is a continual theme in the public law sphere. Judicial review often involves values and policy interests, which must be balanced against and may transcend the individual interests, which are normally the subject of litigation between private citizens. It is also a feature of the supervisory jurisdiction that its remedies are discretionary.^[5]
2.2      In making our recommendations for reform of the judicial review procedure and its remedies we have had to form a view about the proper balance in relation both to particular matters and overall between the interests of the individuals affected by a decision and public interests. For this reason, the parts of the law that we have reviewed and our recommendations, although in one sense procedural, have an important bearing on the limitations on the substantive relief provided by judicial review.
2.3      The relevant public policy interests include:

(a) the importance of vindicating the rule of law, so that public law bodies take lawful decisions and are prevented from relying on invalid decisions;

(b) the need for speed and certainty in administrative decision-making in cases where the whole community, or large sections of it, will be affected by the decisions of public law bodies;

(c) the private interest of individual litigants in obtaining a remedy for their grievances.

There is also in our view a public interest in the prompt adjudication of disputes through the courts.

2.4      The balance between these interests is reflected by the specific requirements of the Order 53 procedure and the approach of the court to the exercise of its discretion to grant or refuse a public law remedy. It may also be affected by the nature and context of a case. Thus, the factor of certainty will be more important (although not necessarily decisive) where the act that is challenged is a general one, such as an administrative rule or a decision affecting a wide range of persons who may have relied on it.
2.5      The public interest in the vindication of the rule of law underpins the very existence of the prerogative jurisdiction and its supervisory role over inferior courts and decision-makers. The conferral of decision-making powers on lower courts, tribunals, ministers and administrators is to a certain extent premised upon the residual jurisdiction of the High Court to supervise and correct errors. It is in our view important for judicial review to be seen as a residual jurisdiction and, save in exceptional circumstances, not one to be invoked where there is an alternative legal remedy.
2.6      Many of the problematic issues concerning the present procedure reflect the tensions between differing interests. Lord Diplock, in O'Reilly v Mackman,^[6] commented that, both before and after the 1977 reforms, the procedure for judicial review provided respondent decision-making bodies with protection against claims which it was not in the public interest for courts of justice to entertain.

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."^[7]

2.7      The public interest in good administration is concerned with the regular flow of consistent decisions, made and published with reasonable dispatch; and in citizens knowing where they stand, and how they can order their affairs in the light of relevant decisions. In R v Dairy Produce Tribunal, ex p Caswell,^[8] Lloyd LJ stated (in the context of the statutory provision on delay) that for there to be detriment to good administration:^[9] "mere inconvenience is not enough. The foreseen consequence must be positive harm".^[10] That detriment is a factor does not provide protection against mere inconvenience to the decision-maker or the decision-making process. It is relevant to look at the wider scene, the impact on others, and the practicability of reopening a decision after a lapse of time.^[11] This approach is also relevant to other aspects of the supervisory jurisdiction, in particular the exercise of discretion to grant or refuse a public law remedy.^[12]

The European dimension in administrative law reform

2.8      We have also taken account of the principles of European Community law and our international obligations under the European Convention on Human Rights in framing our recommendations.^[13]
2.9      By the European Communities Act 1972, directly effective provisions of EC law which give rise to individual rights can be relied on in legal proceedings in the United Kingdom,^[14] and questions as to the validity or meaning of a Community provision have to be determined according to EC law princip1es.^[15] National law must not make it impossible or excessively difficult to enforce such rights.^[16] Thus, in applying the provisions of RSC, Order 53 and section 31 of the Supreme Court Act 1981, which embody procedures governing access to remedies of substantial significance, EC law principles have to be taken into account in cases involving rights conferred by EC law.
2.10      Although it can be argued that there is nothing wrong in principle with having different rules in cases which involve a question of European law, senior judges have pointed to divergence from EC law as a justification for changing domestic law both in matters of procedure^[17] and on questions of substantive law^[18] A majority of those who responded to the consultation paper agreed with our view that differences between the judicial review procedure in domestic English cases and in EC cases need to be justified. None, however, presented any potential difficulties which had not been covered by the consultation paper.^[19]
2.11      The European Convention on Human Rights is not enforceable in legal proceedings in the United Kingdom. It is, however, increasingly being regarded as a relevant source of principles or standards where a statute is ambiguous or where the common law is unclear.^[20] Although it has been said that the Convention has rarely made a difference to the result at which the Court has arrived,^[21] both statute law and common law will be interpreted, so far as possible, with a predilection that such law should conform with its principles.^[22] Under the Convention similar considerations to those concerning EC law arise in connection with the entitlement that civil rights and obligations be determined in a fair and public hearing before an independent tribunal within a reasonable time^[23] and with the entitlement to an effective remedy before a national authority in respect of rights under the Convention .^[24]

Case-load pressure

2.12      When we considered the effect of case-load pressures on law reform options, we pointed to the large increase in applications for leave to move for judicial review between 1980 (525) and 1991 (2089) and the delays in hearing cases, which were exceeding two years in 1992.^[25] We observed, however, that reform of the procedures for judicial review could only address case-load problems to a limited extent. We invited views on the question whether Parliament ought to provide some form of appeal to a court or tribunal in those types of case where many judicial review applications are now being made because there is no other mechanism for legal challenge.
2.13      On more general questions relating to case-load pressures we invited views on five different options. The first was that the nominated judges of the Queen's Bench Division should regularly sit a minimum of a given number of weeks each year as single judges in the Crown Office List. The second was that more judges in the Queen's Bench Division, or judges in the Family Division or the Chancery Division, might assist with this work. The third was that certain types of judicial review applications would be more appropriately dealt with locally, rather than in London, and could properly be heard by judges other than the nominated judges. The fourth was that certain types of application could properly be dealt with by selected circuit judges and Queen's Counsel sitting as deputy high court judges. Finally, we asked whether certain types of judicial review application might be remitted to the County Court.
2.14      Most of the issues dealt with in the caseload management section of the consultation paper are matters directly concerned with deployment of judicial manpower and relative priorities and, as such, are matters which it is for others to address. Here we set out the responses we received on consultation and express our own views on such issues of principle as arose in this context. We passed on and discussed with the Head of the Crown Office, the lords justices in charge of the Crown Office List and the deployment of high court judges^[26]and senior officials at the Lord Chancellor's Department, consultees' suggestions on case-load management issues. We include as Appendix C to this report a more detailed account of some of the case-load management issues we handled in this way.

The Response on Consultation

2.15      There was widespread and almost universal condemnation of the scale of the delays. The periods of delay before a non-expedited substantive hearing were variously described as "completely unacceptable", "intolerable", "reaching scandalous proportions", and "likely to defeat the purpose of taking proceedings". The nominated judges said that they disfigure the present image of judicial review.
2.16      In 1993 homelessness (447) and immigration (668) cases made up nearly half the total number of non-criminal judicial review applications for leave.^[27] Leave was granted in 40.8% of the homelessness cases, and 23.2% were withdrawn (withdrawal often occurs when the applicant's case is reconsidered).^[28] These figures demonstrated the extent to which the resources of the high court (both judges and deputies) were being devoted to homelessness cases because Parliament has provided no other right of recourse to those who were dissatisfied by a local authority's decision.
2.17      A number of consultees, including the Administrative Law Bar Association, the nominated judges and the Lord Chancellor's Department, discussed the desirability of creating an intermediate right of appeal (to a county court or tribunal) in homelessness cases, from which appeal on a point of law might possibly lie to the Court of Appeal. There was also support for a detailed scrutiny of the nature of the immigration cases now coming to the Crown Office. It was put to us that many of them remained disguised appeals on fact, which had nowhere else to go.
2.18      The absence of an internal mechanism of review by a senior official, which can be effective and just,^[29] was also identified as contributing to the problems in many types of case where there is no right of appeal. Although reports by the Chief Adjudication Officer and the Council on Tribunals suggest that internal review is not a substitute for an appeal to an independent adjudicative body^[30] it is likely to lead to a better standard of decision-making. In its recent consultation on the right to housing, the Department of the Environment noted that, although local authorities are recommended to have in place arrangements to review their decisions if challenged, they are under no duty to do so.^[31] It also stated that the Government is considering whether current reliance on judicial review in the High Court should remain the only route of challenge through the courts.^[32]
2.19      Some very experienced consultees said that a more sophisticated form of case-based analysis of the Crown Office case-load was needed. It was said that when a particular subject appears to occupy a disproportionate amount of the judges' time, the case for a specialist tribunal to deal with the topic becomes strong if cases are not to be allocated to the wrong level of adjudication.
2.20      Opinions were divided as to whether judicial review cases should be heard outside London.^[33] Some consultees pointed to the recent research findings^[34] that there was an under-representation of cases from outside London and the South-East and linked this to the unavailability of judges outside that area. Others expressed concerns about inconsistency and the need for a central corps of administrative expertise. Although consultees, on the whole, favoured the use of deputies in planning appeals and homelessness cases, they were reluctant to see their use extended too far and certain weaknesses in the present arrangements were identified.^[35] It was suggested that in principle it is more desirable that a full-time judge, specially selected if a circuit judge, should hear these cases, rather than a QC in active practice at the Bar.^[36]

Developments since the publication of the consultation paper

2.21      Much has happened since 1992. In particular, seven extra Queen's Bench judges were appointed in 1993, and the Lord Chief Justice has said that he intends to deploy the extra capacity in London to cope with the case-load problems in the Court of Appeal (Criminal Division), the Crown Office and the Employment Appeal Tribunal. He has also put in hand measures designed to reduce the numbers of High Court judges sent on circuit, in order to shift the balance in meeting the needs for judges at this level as between London and centres outside London. During 1994 there has been a regular complement of four single judge courts in addition to two Divisional Courts sitting at any one time and this will continue. The number of nominated judges has recently been increased from 18 to 23, and in January 1994 the nominated judges agreed that appropriate deputies could be appointed to hear any type of Crown Office case, and not merely planning appeals and homelessness cases.

Delay: The Present Position

2.22      The position on 1st January and 3 1 July 1994, with comparisons with previous years when appropriate, is set out in full in the Appendix on case-load management issues.^[37] Broadly speaking, while the numbers of applications for leave to apply for judicial review have continued to climb (2886 in 1993 and 1851 in the first 7 months of 1994 as compared with 1728 in a similar period in 1993), the projected waiting time for a case to be heard, once it has entered Part B of the list^[38] has been cut since July 1993 from 21.3 months to 12 months in relation to hearing before single judges, and from 10.2 months to 7.3 months in relation to hearings before a Divisional Court.^[39]

Recommendations

2.23      In principle the fact that a particular jurisdiction throws up a large number of judicial review cases is an indicator that a right of appeal or other supervisory review is needed or that, if one exists, it is not regarded as satisfactory by those who use it. Although it is possible that even after the Asylum and Immigration Appeals Act 1993 many asylum and immigration cases remain disguised appeals which have nowhere to go, there is insufficient information for us to make recommendations for reform on this area which has been considered by Parliament recently.
2.24      The position of homelessness cases is different. There is no right of appeal in such cases and the provision of one was supported by many consultees. We accept that the number of homelessness applications for judicial review and their outcome raise serious questions about the standards of decision-making in that area. We also endorse the view that steps should be taken to improve the standard of decision-making and to provide for internal reviews of decisions which are challenged.^[40]
2.25      We do not, however, believe that the provision of an internal review can be regarded as a proper substitute for a right of appeal to a court or an independent tribunal. We consider that there should be a right of appeal to a court or an independent tribunal in homelessness cases. This might lie either to an independent tribunal or to the county court.^[41] Although there are certain advantages in an appeal to a tribunal, there is no obvious candidate^[42] and the cost implications in creating a new tribunal, particularly a locally based one, must be set against the benefits of a tailormade body. The advantages of the county court are that it deals with other housing matters^[43] and is a local court.
2.26      The Government has been considering this question as part of its review of the homelessness legislation and has announced that:

New arrangements for appeal will be established to lessen the present reliance on judicial review. Each local authority will be required to establish a formal mechanism whereby a person can challenge a decision by the authority's officers on the homelessness application. Consideration is being given to how this might relate to any challenge through the courts.

It is not clear whether the formal mechanism proposed is to be an internal review or an appeal to an independent adjudicative body. As indicated, while an internal review is to be welcomed, we do not consider that it can be a proper alternative to an appeal to an independent body.

We recommend the creation of a right of appeal to a court or independent tribunal in homelessness cases.

2.27      As far as the scope of the appeal is concerned, we believe that, as a minimum, there should be a right of appeal on a point of law, and we so recommend. As an error of law is almost invariably likely to be ultra vires,^[44] the effect of this would primarily be a change of forum from the High Court.

Principles relevant to case-load issues

2.28      As indicated, this report is concerned with the nature of the procedural framework for applications for judicial review. Most of the case-load issues raised in the responses to our consultation paper relate to the deployment of judges and relative priorities which are matters for others to consider. Our study of case-load issues, however, also suggested a number of underlying principles which are necessary if the procedural framework is to be effective and which should not be lost sight of. We consider that the system should:

(a) ensure the efficient despatch of business so as to minimise delay;

(b) avoid, so far as practicable, inconsistencies as between different judges in the exercise of discretion, particularly in the operation of the filter to exclude hopeless applications (at present the leave stage); and

(c) be robust enough to ensure not only that the present delays can be reduced to an acceptable level, but that there is no danger of a return to anything resembling the unacceptable position which existed up to the middle of 1993. We also believe that consideration should be given as to how to:

(d) address the access to justice issues raised by those concerned by the concentration of judicial review in London and the South-East; and

(e) avoid the perceived dangers in the present use of deputy high court judges in the exercise of the Crown Office's jurisdiction.

A number of possible mechanisms to reflect these principles are discussed in Appendix C.

A Duty to Give Reasons The continuing momentum in administrative law towards openness of decision making has not yet led to the recognition of a general duty to give reasons.^[45] In 1977 the Council of Europe, in a resolution (77(31)) to which the United Kingdom is a party, recommended that reasons be given for administrative acts which adversely affect the rights, liberties, or interests of the person concerned. Since then there have been widespread calls for such a general duty. In 1988 the Committee of the JUSTICE All Souls Review of Administrative Law^[46] stated that its absence left "a serious gap in the law". In his Hamlyn lectures in 1989, Lord Woolf stated that he considered that the introduction of a general requirement that reasons should normally be available, at least on request, for all administrative actions, would be "the most beneficial improvement which could be made to English administrative law."^[47] A number of the consultees to our consultation paper also commented on the importance of a general duty to give reasons. This issue is beyond our remit because it is a question of substantive law.

2.30      The absence of a general duty to give reasons does, however, affect procedural matters. Because in judicial review proceedings "the vast majority of the cards will start in the authority's hands",^[48] the absence of a general duty leads to pressure for greater discovery in judicial review proceedings and makes it more difficult to justify a restrictive approach to discovery.^[49] The absence of a general duty may also affect consideration of what form of appeal should lie from a decision. For instance, although there has been criticism of appeals by way of case stated, where, as in the case of the magistrates' court, reasons are not given for decisions, there are clear advantages in the case stated procedure. We therefore welcome the increased willingness by courts to imply a duty to give reasons as part of the duty to act fairly. Moreover, for the reasons given below, we believe that it is likely that there will be further developments in this area.
2.31      The implication of a duty to give reasons may either arise from the circumstances of the individual case^[50] or from the shape of the legal and administrative system within which the decision is taken.^[51] In the case of courts and tribunals it will readily be made since a duty to give reasons is an incident of the judicial process.^[52] The Council of Tribunals has consistently supported the giving of reasons.^[53] In the case of administrative decisions the publication of the new Code for Open Government is likely to increase the circumstances in which a duty to give reasons will be implied.^[54] One of the stated aims of the Draft Code of Practice on Government Information is:

to protect the interests of individuals and companies by ensuring that reasons are given for administrative decisions, except where there is statutory authority or established convention to the contrary.

This is likely to lead to the creation of legitimate expectations that reasons will be given save in the excepted cases.^[55] This, together with the fact that courts are increasingly adverting to the need for there to be an effective means of detecting the kind of error which would entitle the court to intervene by requiring that reasons be given,^[56] may mean that there will be little difference in practice from a general duty.^[57]

Compensation in Respect of Ultra Vires Acts

2.32      This report does not consider whether public authorities should be liable to compensate those injured by invalid administrative action, although the matter is touched on in the section on interim relief where the absence of compensation for ultra vires action means that it may be more likely that interim relief will be given.^[58] The fact that English law does not provide for such compensation has long been the subject of criticism,^[59] and a number of factors, including developments in European Community law,^[60] suggest that the general unavailability of compensation against public authorities for invalid administrative action^[61] requires reconsideration. However, whether compensation should be available and, if so, what its scope should be calls for deeper study than we could conveniently give it in the present exercise. We agree, however, with those consultees to our consultation paper who said that the time is now ripe for such a study.

Note 1   This section is largely based on paras 2.1 - 2.7 of our consultation paper. Consultees agreed that we had identified the relevant policy factors.    [Back]

Note 2   See Judicial Review and Statutory Appeals, Consultation Paper No 126, section 3.    [Back]

Note 3   Ibid, section 4.    [Back]

Note 4   Ibid, section 6.    [Back]

Note 5   Ibid, section 14.    [Back]

Note 6   [1983] 2 AC 237, considered in Part III below.    [Back]

Note 7   Ibid, at 280H-281A.    [Back]

Note 8   [1990] 2 AC 738. Delay is considered in Part IV below.    [Back]

Note 9   Supreme Court Act 1981, s 31(6).    [Back]

Note 10   [1989] 1 WLR 1089, 1100 (CA).    [Back]

Note 11   R v Dairy Produce Tribunal, ex p Caswell [1990] 2 AC 738, 749-750 (Lord Goff).    [Back]

Note 12   See paras 8.17 - 8.21 below.    [Back]

Note 13   See paras 2.32, 5.24, 5.33, 5.36, 6.2, 6.5 and Appendix D below.    [Back]

Note 14   European Communities Act 1972, s 2(1).    [Back]

Note 15   Ibid, s 3(1).    [Back]

Note 16   Case 199/82, Amministrazione delle Finanze dello Stato v SPA San Giorgio [1983] ECR 3595; Case 222/84 Johnston v Chief Constable RUC [1987] QB 129; Case 309/85, Barra v Belgium [1988] 2 CMLR 409.    [Back]

Note 17   Interim relief against ministers and government departments: M v Home Office [1992] QB 270, 306G-307A (Lord Donaldson MR); Re M [1994] 1 AC 377, 406-407 (Lord Woolf), and see para 6.3 below.    [Back]

Note 18   Woolwich Equitable Building Society v IRC [1993] AC 70, 177 (Lord Goff (restitution of ultra vires receipts by public authorities). See also R v Independent Television Commission, ex p TSW Broadcasting Ltd The Times, 30 March 1992 (HL) (proportionality might be a ground of review where a decision affected fundamental human rights). Cf Jowell and Lester, “Proportionality: Neither Novel Nor Dangerous” in New Directions in Judicial Review (1988) 51; Boyron, “Proportionality in English Administrative Law: A Faulty Translation?” (1992) 12 OJLS 37.    [Back]

Note 19   Time limits, interim relief against ministers, and standing were considered.    [Back]

Note 20   A Lester, “European Human Rights and the British Constitution’’ in The Changing Constitution (Jwell & Oliver eds)(3rd ed 1994) pp 46-51; N Bratza, “The Treatment and Interpretation of the European Convention on Human Rights: Aspects of Incorporation” in Gardner ed, European Convention (1994) p 66.    [Back]

Note 21   N Bratza, “The Treatment and Interpretation of the European Convention on Human Rights: Aspects of Incorporation” in Gardner ed, European Convention (1994) p 67; C McCrudden and G Chambers, Individual Rights and the Law in Britain (1994) pp 573-575. This is sometimes because courts find that a Convention principle is in fact embodied in the common law: eg Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 551 (cf [1992] QB 770, 812 per Balcombe LJ; R v Advertising Standards Authority Ltd, ex p Vemons Organisation Ltd [1992] 1 WLR 1289, 1292-1293 (DC).    [Back]

Note 22   Eg R v Miah [1974] 1 WLR 683 (HL); AG v Guardian Newspapers [1987] 1 WLR 1248 (HL).    [Back]

Note 23   Article 6(1). There is a large and uncertain body of law on the meaning of “civil rights and obligations”. See generally, P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (2nd ed, 1990), pp 295-307; JES Fawcett, The Application of the European Convention of Human Rights (1987), pp 126-199. The term has an autonomous meaning and may include rights not regarded as “private rights” in domestic law. It includes certain rights against public authorities acting as such, for instance concerning the grant, revocation or suspension of a licence to practise a profession or engage in an economic activity (Konig v Fed Republic of Germany A 27 (1979- 80) 2 EHRR 469; Benthem v Netherlands A 97 (1986) 8 EHRR 1) and parental rights against local authorities concerning their children (O & H v United Kingdom A 120 (1988) 10 EHRR 82; W, B & R v United Kingdom A 121 (1988) 8 EHRR 29, 85).    [Back]

Note 24   Article 13. See generally, JES Fawcett, op cit, pp 289-294; P van Dijk and GJH van Hoof, op cit, pp 294 ff, and 520 ff. It is possible that a requirement of compensation for unlawful administrative action may affect human rights cases before the Strasbourg courts, see imprisonment of non-payers of poll tax cases reported in The Guardian July 14 1994.     [Back]

Note 25   Consultation Paper No 126, paras 2.14 - 2.23.     [Back]

Note 26   Mann, Kennedy and Simon Brown LJJ.    [Back]

Note 27   The total was 2414: there were 472 in criminal cases.    [Back]

Note 28   According to the Public Law Project’s research in the first quarter of 1991 over two thirds of homelessness cases granted leave were subsequently withdrawn. This compares with an overall withdrawal rate of between 27% and 29% over the same period. See M Sunkin, L Bridges, G Mészáros Judicial Review in Perspective (1993) p 52.    [Back]

Note 29   R Coleman, Supplementary Benejits and the Administrative Review of Administrative Action (CPAG Poverty Pamphlet No 7 1970); J Baldwin, N Wikeley and R Young, Judging Social Security (1992); G Dallet and R Berthoud, Challenging Discretion (1992); T Eardley and R Sainsbury, “Managing Appeals: the Control of Housing Benefit Internal Reviews by Local Authority Officers” (1993) J Soc Policy 461.    [Back]

Note 30   Council on Tribunals, Annual Reports, 1989/90, paras 1.2 - 1.14 and (on homelessness) 2.16 - 2.22; 1990/91 paras 1.48 -1.55; 1991/92 paras 1.18 - 1.33; 1992/93 paras 2.92 - 2.93; Annual Reports of the Chief Adjudication Officer on Adjudication Standards (1988/89), (1989/90), (1990/91). See also R Sainsbury, “Internal Reviews and the Weakening of Social Security Claimants” in Administrative Law and Government Action (eds H Genn, G Richardson) forthcoming (1994).     [Back]

Note 31   Access to Local Authority and Housing Association Tenancies, (Department of the Environment, January 1994), para 16.2.    [Back]

Note 32   Ibid, para 16.3. We had a meeting with senior officials in the Department of the Environment and the Lord Chancellor’s Department in July 1994 to discuss the need to divert cases away from the High Court to a more appropriate intermediate level of review. See, further, paras 2.24 - 2.27 below.    [Back]

Note 33   See para 4.1 of Appendix C below.    [Back]

Note 34   M Sunkin, L Bridges and G Mészáros, Judicial Review in Perspective (1993) Public Law Project pp 21 - 23.    [Back]

Note 35   See paras 5.1 - 5.2 of Appendix C below.    [Back]

Note 36   See paras 8.20 and 8.21(2) of Appendix C below.     [Back]

Note 37   See paras 7.1 - 7.6 of Appendix C below.    [Back]

Note 38   See Appendix C, para 7.1 B.     [Back]

Note 39   See Appendix C, para 7.4.    [Back]

Note 40   See para 2.18 above, but note that previous proposals for internal review were described by the Council on Tribunals as “perhaps the least satisfactory arrangement which could be devised in terms either of its adequacy as an appeal mechanism or of its perceived independence”: Council on Tribunals, Annual Report for 1989/90, para 2.22.    [Back]

Note 41   See M Partington, “Reforming Judicial Review: the Impact on Homeless Persons Cases” [1994] JSWFL 47, 59-62.    [Back]

Note 42   It has been said that the obvious candidate would be the Rent Assessment Committees (Partington, op cit, at p 60) but those are primarily concerned with determination of rents, questions of valuation, and the terms of statutory periodic tenancies.    [Back]

Note 43   Including breach by a local authority of its statutory duty to provide accommodation once the existence of the statutory duty is established: Housing Act 1985, s 65; Cocks v Thanet DC [1983] 2 AC 286; Halsbury’s Laws vol 22, para 513; Partington and Hill, Housing Law: Cases, Materials and Commentaty (1991) pp 589-597; County Court Practice 1993, p 17.    [Back]

Note 44   Re Racal Communications Ltd [1981] AC 374. The qualification is needed because of R v Hull University Visitor, ex p Page [1993] AC 682 (albeit in the context of domestic visitatorial jurisdiction). See also Bugg v DPP [1993] QB 473.    [Back]

Note 45   R v Secretary of State for the Home Department, exp Doody [1994] 1 AC 531, 561, 564-566 (HL). See also R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 259, 262. Although it will not be inferred from an absence of reasons that a decision is Wednesbury unreasonable (R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 539-540. Cf Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997), bad reasons will invalidate a decision: see eg R v Criminal Injuries Compensation Board, ex p Gambles The Times 5 January 1994; R v Secretary of State for the Home Department, ex p Nelson The Independent 2 June 1994. See generally M Fordham Judicial Review Handbook (1994) P 25.7.    [Back]

Note 46   Administrative Justice: Some Necessary Reforms (1988) Ch 3.    [Back]

Note 47   Protection of the Public - A New Challenge (1990) p 92.    [Back]

Note 48   R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941, 945 (Sir John Donaldson MR). See R v Secretary of State for the Home Department, exp Doody [1994] 1 AC 531, 561, 565- 566 (HL).    [Back]

Note 49   We consider discovery at paras 7.4 - 7.12 below.    [Back]

Note 50   R v Civil Service Appeal Board, ex p Cunningham [1992] 4 All ER 310 (CA).    [Back]

Note 51   R v Secretary of State for the Home Department, ex p Doody [ 19941 1 AC 531, 561.    [Back]

Note 52   R v Knightsbridge Crown Court, ex p International Sporting Club (London) Ltd [1982] QB 304. For recent examples, see R v Snaresbrook Crown Court, ex p Lea The Times 5 April 1994; Re a Solicitor (CO/1535/93) The Times 5 April 1994.    [Back]

Note 53   For the most recent comment see Annual Report 1992-93 para 2.94 - 2.103 (in relation to Social Security and Child Support Commissioners).    [Back]

Note 54   White Paper on Open Government Cm 2290 (1993).    [Back]

Note 55   Even on the narrower approach in R v Secretary of State for Transport, ex p Richmond-upon- Thames LBC [1994] 1 WLR 74.    [Back]

Note 56   R v Secretary of State for the Home Department, exp Doody [1994] 1 AC 531, 561, 565-566, (HL).    [Back]

Note 57   But cf non-governmental bodies which are not covered by the Code of Practice: R v Higher Education Funding Council, ex p Institute of Dental Surgery [ 1994] 1 WLR 242.    [Back]

Note 58   See para 6.10 below.    [Back]

Note 59   For recent examples (although taking different approaches) see the JUSTICE-All Souls Report, op cit, ch 11; Woolf, Hamlyn Lectures, pp 56-62; R v Knowsley BC, ex p Maguire (1992) 90 LGR 653 (Schiemann J). See also, H Street, Governmental Liability: a comparative study (1953), pp 78-80; C Harlow, Compensation and Government Torts (1982).    [Back]

Note 60   Cases C-6/90 & 19/90, Francovich v Italian Republic [1992] IRLR 84 (EJC); Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227 (HL). For a more cautious approach to implementation of Francovich see PP Craig “Francovich, Remedies and the Scope of Damages Liability” (1993) 109 LQR 595 and see Paola Faccini Dori’ v Recreb Srl Case C91/91 (ECJ) The Times 4 August 1994.    [Back]

Note 61   Eg Rowling v Takaro Properties Ltd [1988] AC 473 (PC); Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716. But cf R v Inland Revenue Commissioners, ex p Matrix-Securities Ltd [1994] 1 WLR 334, 346 where Lord Griffiths suggested that where a person had spent money in reliance on a clearance which was later withdrawn, fairness required reimbursement and it could be regarded as an abuse of power for the authority, there the revenue, to refuse to do so.    [Back]