Legal standing and other changes to judicial review

The Plantagenet Alliance is currently seeking permission to apply for a judicial review of the decisions taken by the Ministry of Justice and the University of Leicester in relation to a licence, issued under section 25 of the Burial Act 1957 by the MoJ, for the exhumation of the remains which were later identified as those of Richard III.  The areas of concern include: the absence of consultation by the MoJ prior to the exhumation, by the University following the identification of the remains; and the MoJ’s decision not to re-visit the grant of the licence once it became clear that the University of Leicester would not carry out an appropriate consultation.

On 6 July the Plantagenet Alliance announced that the High Court in London had received and filed all claim documents (including supplementary information and Witness Statements) from all parties and would review these during the following 6-8 weeks. A ruling regarding the Permission Stage and the Alliance’s application for a Protective Costs Order would then be made. If granted, the Judicial Review will examine illegality, irrationality or procedural irregularities of the decision making processes of the MoJ and the University of Leicester, but not the validity of the decisions themselves.

In parallel with these events, the Ministry of Justice has been progressing its programme for reforming judicial review, and whilst these are unlikely to have an impact on the application of the Plantagenet Alliance, they are of general relevance to the future application of the law in this area [1]. Subsequent posts will address the Church of England’s proposed changes to section 25 of the Burial Act 1857, here, and the implications of the recently published findings on the car park excavations of the University of Leicester, here.

 Judicial Review

At the end of last year, the Ministry of Justice undertook a public consultation Judicial Review: proposals for reform [2], and in its response, government announced its intention to proceed with the majority of its proposals including: reduction of the time limit for judicial review from three months to six weeks in planning cases and thirty days in procurement cases; withdrawing the right to renew an application orally, for claimants turned down on the papers, where the judge certifies the application as “totally without merit”; and the introduction of a fee of £125 for claimants who choose to renew an application orally.

In their analysis of the consultation responses, Varda Bondy and Maurice Sunkin highlight some of the weaknesses in the government’s evidence base in relation to the scale of litigation and abuse, and suggest that reforming the process may have nintended consequences that could increase burdens on public bodies and the courts without achieving the ends that the government hopes. They suggest that restrictions on access may also have a disproportionate adverse effect on claimants with genuine legal disputes with public bodies especially in relation to public service provision.

This week it was reported by The Times and The Daily Telegraph that the government is seeking to introduce a further set of reforms which will place significant restrictions on the test for the legal standing of groups or individuals in judicial review cases, (see Mark Elliott’s post of 29 July 2013 on his Public Law for Everyone blog).  Currently section 31(3) of the Senior Courts Act 1981 sets out a test for legal standing based upon a requirement of “sufficient interest” in the matter in question, of which Elliott notes that “over the years, the vague statutory “sufficient interest” criterion has been imbued with a generous meaning”.

He continues, following R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd, [1982] AC 617 [1982] AC 617, “courts went on to fashion a broad—but not infinitely broad—standing test”. The case of R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2) [1994] 4 All ER 329 introduced the concept “associational standing” in which a pressure group was allowed to issue a claim on behalf of its local members who might be affected by the  commissioning a new nuclear reprocessing facility. In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, standing was further extended to include considerations of public interest.

Comment

The MoJ’s December Consultation focussed on immigration and asylum matters, the main “growth area” in Judicial Review [3], but clearly any changes to the JR regime will impact on individuals or groups who claim the illegality, irrationality or procedural irregularities in the decision making processes of the Executive, including those of Ministers, local authorities, other public bodies and those exercising public functions.

Section 25 of the Burial Act 1875 addresses exhumation from both “consecrated place[s] of burial” and “any place of burial” [4], and judicial review is applicable both to the bodies issuing “section 25 licences” and to the ecclesiastical courts.  This has been reviewed by Hill [5] and more recently by Hill, Sandberg and Doe in Religion and Law in the United Kingdom [6],in which the authors state [at page 37]

“It is generally thought that the decisions of the Church courts are subject to judicial review of the High Court.  Section 81 of the Ecclesiastical Jurisdiction Measure 1963 states that the High Court has power to enquire into contempt of the Consistory Court upon certification by the chancellor, [section 81(3)], and recognizes the supervisory jurisdiction of the High Court over the Consistory Court. . . . . . . . For the purposes of the Human Rights Act 1998, all courts and tribunals of the Church of England are public authorities and as such must act in a way which is compatible with Convention rights, [section 81(2)]”.

Postscript

Although not of direct relevance to the above discussion, for completeness, readers’ attention is drawn to today’s post by Aileen McHarg of the Constitutional Law Group – Access to Judicial Review In Scotland – in which she discusses the intention of the Scottish Government to recommend the approach in England and Wales by introducing a leave requirement and a three month time limit for Judicial Review.  A consultation has been launched for the incorporation of these recommendations, inter alia, through the Draft Courts Reform (Scotland) Bill.


[1] This post is not a commentary on these current proceedings, but an analysis of the issues raised in the MoJ consultation in the context of the future developments in this general area.

[2] 13 Dec 2012 to 24 Jan 2013.

[3] The consultation states [at para.31]: “In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted.13 Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year)”.

[4] There is a degree of uncertainty regarding the scope of the term  “any place of burial”, and whether this applies as a default position to any land which is not consecrated by the Church of England, or is covered by another statutory provision.

[5] M Hill, “Judicial Review of Ecclesiastical Courts”, in English Canon Law, ed. N Doe, M Hill & R Ombres, (1988, University of Wales, Cardiff) 104-114.

[6] M Hill, R Sandberg and N Doe, Religion and Law in the United Kingdom, Kluwer Law International, The Netherlands 2011).

1 thought on “Legal standing and other changes to judicial review

  1. Pingback: Richard III reburial: the decision for judicial review | Law & Religion UK

Leave a Reply

Your email address will not be published.