This document is the post-consultation report for the consultation paper, The Administrative Court: Proposed Changes to Primary Legislation.
It covers:-
the background to the report
a summary of responses to the report and detailed responses to specific questions raised in the report
the next steps following this consultation.
Further copies of this report can be obtained by contacting Mukundrai Joshi at the address given below:
Mukundrai Joshi
Civil Justice Division
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020 7210 8556
E-mail: mukundrai.joshi@dca.gsi.gov.uk
Prior to publication of the Consultation Paper in July 2001, we took the view that there would be a negligible impact on any sector. This assessment has not been questioned by any of the consultees.
Habeas corpus
We expected that, as a result of our original proposals, there might be about 30 fewer separate claims for habeas corpus cases a year, with the claim for the remedy being brought together with the claim for judicial review. We also expected that the netting off effect on any sector, including businesses, charities or the voluntary sector would be negligible. This was not questioned during consultation and we therefore remain of the view that a Regulatory Impact Assessment is not necessary.
Most of the habeas corpus applications which would be affected by our proposals relate to asylum and immigration cases. While this group would remain "disproportionately" affected by the proposal, none of the representative groups raised any concerns during consultation.
Restitution, the award of a liquidated sum and interest, substitute decisions, nomenclature and contempt
Although some of these proposals might have a significant impact on Government, for example, by increasing the amount paid out in compensation, we are satisfied that there will be a nil or negligible impact on businesses, charities or the voluntary sector and therefore a Regulatory Impact Assessment is not necessary. We do not expect these proposals to have a disproportionate impact on any group.
A consultation paper "The Administrative Court: Proposed changes to primary legislation" was published in July 2001. The paper was issued following Sir Jeffery Bowman's Review of the Crown Office List which examined its rules and procedures, its resources and work methods, its jurisdiction and appeal procedures and the constitution and organisation of the courts handling the Crown Office List.
The review team set out detailed conclusions and recommendations for reform of the Crown Office List, which would require amendments to primary legislation.
Around 450 copies of the paper were sent out to members of the judiciary, governing bodies of the legal profession – the Bar Council and the Law Society – and other interested parties.
A total of 36 responses to the consultation paper were received. Of these, 11 were from members of the judiciary; 12 were from legal professionals; 12 from government departments or other public bodies; and 1 from a private individual.
The responses were analysed during the last quarter of 2001 and first quarter of 2002 for possible new approaches to the issues, evidence of the impact of the proposal and levels of support among particular groups.
The proposals were generally well received and a majority of those responding supported the proposed changes. An analysis of the responses to each question published in the consultation is detailed below.
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Question 1: It was proposed that habeas corpus ad subjiciendum should be available by judicial review for all civil cases. |
Just over 84% of those who responded to the Paper addressed this question. Of these, 93% supported the proposal. Only 30% of these made additional specific comments. Of those who did, most were concerned that the new procedure could be used to circumvent the current judicial review controls or that the proposed change would limit the scope of habeas corpus and, in particular, that it would adversely affect the speed with which such cases were currently handled by the courts. In addition, some respondents considered that the proposal should be extended to cover criminal claims. Those who opposed the proposal were generally concerned at the lack of any specific provisions for handling urgent claims in the current judicial review rules. As such, they considered that the proposed provision would introduce a substantial delay into the handling of habeas corpus claims.
The proposed new procedure would not affect the circumstances in which habeas corpus is currently available and any claim for habeas corpus in its own right would, of course, continue to be handled as is currently the case. It would remain a matter for the claimant to decide, depending upon the circumstances of the case, whether to seek release from detention by judicial review or by an application for habeas alone. Therefore, the Secretary of State is satisfied that the change would not limit the scope of habeas corpus. While he does accept that the current judicial review rules do not make a specific provision for handling urgent claims, satisfied that the new procedures introduced by the Administrative Court Office in February 2002 would be sufficient to alert the court to the need for speed. These procedures involve the claimant setting out the urgency of their application on an "urgency form" and would ensure that any genuinely urgent cases are considered promptly.
The Secretary of State is also satisfied that the changes proposed elsewhere in the Paper (see Questions 5-9) would provide the necessary safeguards to ensure that the integrity of the current judicial review procedure is not compromised. Therefore he considers that there is little risk that the proposed new procedure would be successfully abused.
Although not part of the original consultation, having reflected on the comments received, the Secretary of State is now of the view that, should the new procedure be introduced, it should apply to all civil and criminal (including extradition) habeas corpus claims.
However, since the end of consultation there has been a reduction of about 42% in the total number of claims for habeas corpus and anecdotal evidence from the Administrative Court indicates that there are very few occasions on which both habeas corpus and judicial review are sought by the same claimant. On reflection, therefore, the Secretary of State has decided that there is no need to introduce the proposed new procedure at this time.
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Question 2: It was proposed that habeas corpus should be available as a remedy both by judicial review and in its own right |
Just over 78% of those responding to the Paper addressed question 2. Of these, 67% were in favour. The broad view of those who did respond was that although a single unified procedure would be simpler to administer, the habeas corpus procedure had historical and constitutional significance and should continue to be available. In addition, there was some concern, particularly if the proposals were extended to criminal and extradition cases, that the judicial review procedure would not be able to cover detention by private bodies / persons or by the Crown Court on a trial on indictment.
The Secretary of State agrees with this consensus view. However, on reflection, he has decided that there is no need to introduce the proposed new procedure at this time (see paragraph 8 above).
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Question 3: Comments were invited as to whether habeas corpus ad subjiciendum should be wholly subsumed into judicial review as recommended by the Review Team. |
Over 83% of respondents considered this question. These were evenly divided in supporting and opposing the proposal. While it was generally considered that wholly subsuming habeas corpus into judicial review could produce a simpler process, there were concerns that the absence of a separate mechanism to challenge detention where only habeas corpus was being sought would offer less protection to claimants (see paragraph 4). In addition, some respondents were also concerned at the lack of any specific provisions for handling urgent claims in the current judicial review rules. As such, they considered that the proposed provision would introduce a substantial delay into the handling of habeas corpus claims.
The Secretary of State agrees with the view that a single unified procedure would be simple and easy to understand. However, he also remains of the view that it should be a matter for the claimant to decide, depending upon the circumstances of the case, whether to seek release from detention by judicial review or by an application for habeas corpus alone. While he does accept that the current judicial review rules do not make a specific provision for handling urgent claims, he is satisfied that the new procedures introduced by the Administrative Court Office in February 2002 are sufficient to alert the court to the need for speed. These procedures involve the claimant setting out the urgency of their application on an "urgency form" and will ensure that any genuinely urgent cases are considered promptly. Therefore, he is not persuaded, at this time, that habeas corpus should be wholly subsumed into judicial review (see also paragraph 6).
However, given the developments since the completion of consultation (see paragraph 8) the Secretary of State has decided that there is no need to introduce the proposed new procedure at this time.
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Question 4: It was proposed that the discretionary elements of judicial review relating to permission to apply, time limit and remedies should apply to a claim for habeas corpus by judicial review. |
Just over 83% of respondents replied to this question. Of these, 60% were in favour of the proposal and agreed that such provisions were needed in order to avoid potentially weak claims being brought.
Those opposed to the proposal were generally concerned that such provisions, in particular the discretion that a court would have over whether to grant an order, would fundamentally change the nature of habeas corpus and that this would be in breach of the courts obligations under the Human Rights Act 1998. In addition, they were also concerned at the lack of any specific provisions for handling urgent claims in the current judicial review rules. As such, they considered that the proposed provision would introduce a substantial delay into the handling of habeas corpus claims.
The Secretary of State is satisfied that, as the existing provisions for bringing a claim for habeas corpus in its own right would continue to be available without change, the proposals do not represent a fundamental change to the scope or availability of habeas corpus. Rather they would simply introduce an alternative procedure for applying for habeas corpus. However, the Lord Chancellor notes that the existing habeas corpus procedure is, currently, used in very few instances and most challenges against detention are brought via judicial review which has safeguards against weak and/or spurious claims. He therefore considers that it would be important that the new mechanism did not offer an opportunity to circumvent these safeguards and considers that any claim for habeas corpus brought under the new procedure should be subject to the existing judicial review rules.
The new procedure would not, of course, necessarily be appropriate where a claimant wished to seek an order of habeas corpus outside the existing time limits for applying for judicial review. Where they did not wish to try to persuade the court that they have good reasons for making a late claim, they would be able to use the existing procedure for applying for habeas corpus in its own right. As such, the Secretary of State is satisfied that the existence of a time limit under the new procedure will not unfairly penalise a claimant. In any event, he is of the firm view that where a claim is brought under the new procedure it would be highly unlikely that a court would refuse to grant either permission to apply, where there is an arguable case, or the remedy, if it considered that the claimant were being held illegally.
While he does accept that the current judicial review rules do not make a specific provision for handling urgent claims, he is satisfied that the new procedures introduced by the Administrative Court Office in February 2002, which involve the claimant setting out the urgency of their application on an "urgency form", would be sufficient to alert the court to the need for speed and would, therefore, ensure that any genuinely urgent cases are considered promptly.
However, on reflection given the developments since the completion of consultation (see paragraph 8) the Secretary of State has decided that there is no need to introduce the proposed new procedure at this time.
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Question 5: It was proposed that where habeas corpus was claimed by judicial review, the initial permission hearing should be on notice and be normally considered on the papers. |
Around 81% of those responding to the Paper addressed this question. Of these, almost 69% were in favour of the proposal. The majority of those opposed to the proposal were concerned that this would not be as transparent as the existing procedure and would also introduce a substantial delay into the handling of habeas corpus claims.
The Secretary of State is satisfied that the new procedures for handling judicial review claims, which involve the claimant setting out the urgency of their application on an "urgency form", are sufficient to alert the Administrative Court Office to the need for speed and would, therefore, ensure that any genuinely urgent cases would be considered by the courts promptly and transparently.
However, given the developments since the completion of consultation (see paragraph 8) the Secretary of State has decided that there is no need to introduce the proposed new procedure at this time.
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Question 6: It was proposed that, where a claim for judicial review seeks habeas corpus and one or more of the other remedies currently available under judicial review, the court should only be able to consider the remedies for which permission to proceed has been given. |
Of those responding to the Paper, just over 81% considered this question. Of these, almost 76% were in favour. Most of those opposed to the proposal generally considered that permission should not be required for a claim for habeas corpus by judicial review. However, a number of other consultees observed that this would require a change to the court's current approach to permission applications where it is normally given on certain grounds and not for particular remedies.
The Secretary of State is satisfied that it would be appropriate and reasonable to include a permission requirement for a claim for habeas corpus by judicial review (see paragraphs 14-17) and that it would be essential to take steps to ensure that the new procedure is not used as a means of circumventing the existing controls on judicial review. However, he acknowledges that this proposal would represent a significant change to the manner in which permission is usually considered.
Habeas corpus is limited to jurisdictional error, i.e. point of law, and, therefore, it is, in itself, much more limited than judicial review. As such, any claim would be limited to those grounds. Therefore, after due consideration the Secretary of State considers that rule 54.15, which provides that the courts permission is required if the claimant seeks to rely on grounds other than those for which permission has been given, would be sufficient to avoid abuse of the new procedure.
However, given the developments since the completion of consultation (see paragraph 8) the Secretary of State has decided that there is no need to introduce the proposed new procedure at this time.
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Question 7: It was proposed that, where the court refuses an application for habeas corpus by judicial review, the current appeal against a refusal to grant an order of habeas corpus in its own right should apply. |
Over 83% of those responding to the Paper addressed this question. Of these, 80% supported the proposal. However, while most comments supported the proposal, a few were concerned at the proposed retention of the distinction between habeas corpus and judicial review appeals whereby the former may be brought without permission but the latter requires permission. In particular, they were concerned that this could encourage claimants to try to include habeas corpus in their application in order to use that appeal to circumvent the current judicial review provisions and advance the underlying basis of their challenge at the appeal stage.
Lord Irvine gave a commitment during the passage of the Access to Justice Act 1999 that his powers under that Act would not be used to introduce a permission requirement for an appeal against the refusal of habeas corpus. While the Secretary of State acknowledges that the proposed retention of the existing appeal route for the proposed new procedure could be seen as an opportunity to avoid the current judicial review provisions, he is satisfied that the safeguards he has proposed would prevent such an abuse (see paragraph 31 below).
However, given the developments since the completion of consultation (see paragraph 8) he has decided that there is no need to introduce the proposed new procedure at this time.
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Question 8: It was proposed that, on considering an appeal against the refusal to grant an order of habeas corpus by judicial review, the court should be able to consider the other remedies available by judicial review only where permission to appeal in respect of those remedies has been given. |
Just over 81% of those responding to the Paper, considered this question. Of these, over 86% were in favour. The general view was that this would prevent abuse of process and ensure that only applications with merit would proceed to a full hearing. However, some were also concerned that this would significantly alter the way that permission is now granted.
It is currently the case that permission to appeal is granted on specific grounds. Although it would be possible to bring an appeal against a refusal to grant habeas corpus by judicial review without permission, this would be restricted to the grounds on which habeas corpus can be sought, i.e. jurisdictional error. Therefore, the Secretary of State agrees that it would already be the case that the court should only be able to consider wider grounds if permission has been given. However, he is also conscious of the risk of appellants seeking to persuade the court to widen the scope of an appeal without permission having been granted. Therefore he considers that if this measure were taken forward, there would be merit in inviting the Civil Procedure Rule Committee (CPRC) to consider introducing a new rule to clarify that where an appeal may be brought on certain ground(s) without permission the court will only consider other grounds if permission has been given, before hearing the appeal.
However, given the developments since the completion of consultation (see paragraph 8) the Secretary of State has decided that there is no need to introduce the proposed new procedure at this time.
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Question 9: It was proposed that, as is currently the case for damages, restitution and the award of a liquidated sum should be available on an application for judicial review, provided that these could have been awarded on a private law claim. |
Nearly 81% of those responding to the Paper addressed this question. Of these, over 93% supported the proposal. The broad view of those responding was that while claims that included damages and the instances where, for example, a liquidated sum might be sought on a judicial review claim were rare, it was sensible to include the additional remedies.
The Secretary of State fully agrees with the views of the respondents.
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Question 10: It was proposed that the Latin titles of the prerogative orders currently only available by judicial review should be replaced and that the orders should now be known as: a mandatory order, a prohibition order and a quashing order. |
Over 78% of respondents replied to this question. Of these, over 85% supported the proposal. It was generally considered that while such a change would not have any impact on the nature of the remedies available, it would improve public understanding of their purpose. Part 54 of the Civil Procedure Rules has already introduced the new names into everyday use and most respondents agreed that it made sense to align on these where possible.
The Secretary of State fully agrees with the views of the respondents.
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Question 11: It was proposed that there should be a specific power to allow the court to substitute its own decision for that of an inferior court or tribunal provided that: (i) there was only one lawful decision that could be arrived at; and (ii) the grounds for review arose out of an error of law. |
About 84% of those responding addressed this question. Of these over 93% favoured the proposal. The general view of those supporting the proposal was that this would be a positive development, which would lead to increased efficiency, speedy final outcomes and lead to savings in public funds. The broad view of those who were opposed was that while they saw the value in allowing the court to substitute its own decisions, they did not favour any restrictions on the court powers.
The Secretary of State notes the strong support that this proposal received and is satisfied that it would be helpful to clarify the court's power to make a substitute decision. While he also notes the position of those opposing the proposal, he remains convinced that this power should be available in the circumstances proposed by the Law Commission in its 1994 report.
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Question 12: It was proposed that rule 52.3 should be amended to clarify that while an appeal against the refusal of a claim for habeas corpus by judicial review may be brought without leave, the court may only consider the other remedies available under judicial review if leave has been granted in respect of them. |
Just under 75% of respondents addressed this question. Of these, 78% supported the proposal. The broad consensus was that such a provision was necessary if claimants were not simply to seek to use the new procedure as a means of circumventing the existing permission requirement for appealing against the refusal of a claim for judicial review.
The Secretary of State notes the views of the respondents but on reflection, recognises that this would significantly alter the current way that permission is given. Therefore, he considers that should this measure be taken forward that he should invite the CPRC to consider introducing a new rule to clarify that where an appeal may be brought on certain ground(s) without permission the court will only consider other grounds if permission has been given before hearing the appeal (see paragraph 31). However, given the developments since the completion of consultation (see paragraph 8) he has decided that there is no need to introduce the proposed new procedure at this time.
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Question 13: It was proposed that rule 52.15 should be amended to clarify that while an appeal against the refusal of permission to apply for habeas corpus by judicial review may be brought without leave, the court may only consider the other remedies available under judicial review if leave has been granted in respect of them. |
About 81% responded to this question. Of these over 86% were in favour of the proposal. The broad consensus was that such a provision was necessary if claimants were not simply to seek to use the new procedure as a means of circumventing the existing permission requirement for appealing against the refusal of a claim for judicial review.
The Secretary of State notes the views of the respondents but on reflection, recognises that this would significantly alter the current way that permission is given. Therefore, he considers that should this measure be taken forward that he should invite the CPRC to consider introducing a new rule to clarify that where an appeal may be brought on certain ground(s) without permission the court will only consider other grounds if permission has been given before hearing the appeal (see paragraph 31). However, given developments since the completion of consultation (see paragraph 8)(see paragraph 8 overleaf) he has decided that there is no need to introduce the proposed new procedure at this time.
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Question 14: It was proposed that rule 54.3(1) should be amended to include an order of habeas corpus ad subjiciendum in civil cases only. |
About 78% of those replying to the consultation addressed this question. Of these, 82% were in favour of the proposal. The general view is that this would be necessary in order to introduce the new remedy and ensure that, if appropriate, it was limited to civil cases only.
A number of consultees questioned the absence of criminal cases from the scope of the new procedure (see paragraphs 4 and 8) and, following further consideration, the Secretary of State considers that the new procedure should be available in respect of all habeas corpus claims. However, given the developments since the completion of consultation (see paragraph 8) he has decided that there is no need to introduce the proposed new procedure at this time.
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Question 15: It was proposed that rule 54.3(2) should be amended to include a claim for restitution and the award of a liquidated sum. |
About 81% responded to this question. Of these, 72% were in favour of the proposal. The general consensus was that this was necessary to allow these to be claimed by judicial review and align the private and public routes for seeking damages.
The Secretary of State fully agrees with the views of the respondents.
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Question 16: Comments were invited as to whether a single judge should be able to handle any committal hearing for contempt, with provision to refer the matter, in appropriate cases, to a Divisional court. |
Just over 81% of those replying to the consultation, addressed this question. Of these, almost 97% supported the proposal. The general view of those replying was that such a change would simplify, streamline and make more flexible the handling of such cases.
Single judges hearing contempt cases is not novel, it already exists in the Administrative Court, where single judges hear civil contempt. Circuit Judges and Recorders sitting alone also hear committal proceedings in the Crown Courts and Family Courts. There are safeguards inherent in the proposal as it will allow single judges to pass complex, controversial or sensitive cases to the Divisional court when it is considered appropriate to do so.
The Secretary of State is appreciative of the comments that have submitted and is aware of the high level of support this proposal has received. However, he considers that some aspects of this proposal need further attention and believes it would be prudent for them to be considered further before this proposal becomes implemented policy.
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Question 17: It was proposed that, following a committal hearing for contempt, there should be an initial appeal, without permission, to the Court of Appeal, with a subsequent appeal, with permission, to the House of Lords, in all cases. |
About 78% of those who responded to the paper commented on this proposal. Of those who did, just over 82% supported the proposal. The broad consensus of those supporting the proposal was that it would simplify the current cumbersome appeal process for such claims and, thereby, improve the efficiency of the court. However, a small proportion of those supporting the change did also question why the proposed initial appeal, should not also require permission.
The Secretary of State is satisfied that the proportion of responses is right and that it reflects the need for change in dealing with contempt hearings in the Administrative Court judgements. He is persuaded by the arguments set out in Chapter II of the consultation paper and the comments received. However, he believes that it might again be useful to consider the detailed comments received on these questions before he decides whether to take the policy behind the proposal forward.
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Question 18: Comments were invited on the recommendation that, as is proposed for judicial review, restitution, the award of a liquidated sum and the award of interest should be available in all proceedings heard in the Administrative Court, including appeals |
Just under 75% of those responding to the consultation addressed this question. Of those who did, 85% were in favour of such a measure. However, the general view of those responding was that this would alter the character of statutory challenges and appeals in a very significant way and required further more detailed consideration before any firm proposals could be brought forward.
The Secretary of State is appreciative of the comments that have been submitted and is aware of the high level of support this proposal has received. However, he recognises that such a change would significantly extend the power of the court in such matters and considers that further consideration must be given to fully scoping and identifying implications of such a change, before he will be in a position to decide whether or not to bring forward specific proposals.
The Secretary of State is appreciative of the comments received but considers that on reflection, in view of the developments since consultation, there is no need to introduce the additional procedure for applying for habeas corpus by judicial review at this time.
However, he is satisfied that there would be merit in allowing, as with damages, the private law remedies of restitution and the award of a liquidated sum to be available by judicial review and replacing the Latin titles of the prerogative orders available by judicial review. He intends to bring these changes forward as soon as practicable.
The Secretary of State is also satisfied that there would be merit in clarifying the circumstances in which the court may substitute its own decision. He intends to bring forward this proposal when a legislative opportunity is available.
The Secretary of State considers that further work is necessary before he is able to consider taking forward proposals to:
provide for a single judge to hear any committal hearing for contempt;
introduce a common right of appeal in respect of a committal for contempt; and
allow restitution and a liquidated sum to be available in all proceedings heard in the Administrative Court, including appeals.
Sir Jeffery Bowman (Chairman)
Lord Justice Simon Brown
Alan Cogbill, Director of Civil Justice and Legal Services, LCD
Professor Jeffrey Jowell QC
Mr Justice Keene
Bernadette Kenny, Director of Operational Policy, LCD*
Anne Owers, Director of Justice
[*Bernadette Kenny replaced Nick Smedley in June 1999]
| Mr Justice Munby | Nominated High Court Judge, Administrative Court |
| Mr Justice Silber | High Court Judge |
| M R Jackson | Andrew M Jackson & Co. Solicitors |
| Mr Justice Harrison | High Court Judge |
| Michael Burgess | Coroners Society of England & Wales |
| Prof. T M Partington | Law Commission |
| Ruth Lea | Institute of Directors |
| Roger Venne | Civil Appeals Office |
| J A Franks | William Sturgess Solicitors |
| Mr Justice Ouseley | High Court Judge |
| Mr Justice Elias | High Court Judge |
| Mr Justice Richards | High Court Judge |
| T D Straker QC | Local Govt. & Planning Bar Association |
| Mr Justice Turner | High Court Judge |
| Sid Brighton | Chief Executive Justices' Clerks' Society |
| Mr Justice Scott Baker | Lead Judge Administrative Court |
| Sir Jeffery Bowman | Chairman of The Review |
| Mr Justice Carnwath | High Court Judge |
| B O'Neill | Secretary to Criminal Bar Association |
| Jane Hickman | Metropolitan Police |
| Stephen Swan | Health & Safety Executive |
| Andrew Brookes | Housing Law Practitioners Association |
| Paul Bowen | Public Law Team Doughty St. Chambers |
| Javan Herberg | Blackstone Chambers / Bar Council |
| A D R Zellick | 52 Gordon Square |
| Timothy Jones | St. Phillips Chambers |
| Roisin Pillay | JUSTICE |
| Stephen Hodgson | Association of Police Lawyers |
| Lord Justice Kennedy | Lord Justice of Appeal |
| J Farbey / R Husain | Immigration Law Practitioners Association |
| Pam Culley | Home Office (AJRU / AAPD) |
| Roland Phillips | The Treasury Solicitor / Government Litigators Group |
| Alison Green | National Association of CAB |
| Master McKenzie | The administrative Court |
| D K Das | A private individual |
| The Law Society |