Lord Woolf's report whistles in the wind
12 March 1996
Lord Woolf underlines the importance of public law, when he states in his recommendations that: "Many... public law proceedings... are of considerable constitutional significance, since they are the means whereby the lawfulness of decisions of public bodies can be examined by the courts."
It is also, therefore, of the utmost importance that the ordinary citizen and public interest groups are able to access the public law courts to ensure that unlawfulness by public bodies does not go unpunished. Lord Woolf is known to support the increased use of judicial review in the public interest by groups, such as Greenpeace and the Child Poverty Action Group, and the Law Commission's 1994 recommendation that a public interest test be added to the Legal Aid Regulations to enable individuals to bring important public interest cases. But how, if at all, does his report help judicial review applicants?
First, Lord Woolf emphasises that applicants should be encouraged to use "any system of dispute resolution available'"before coming to court. If this is taken to heart by the judges, many applicants will be discouraged from seeking redress from the court if there is a risk of being knocked back to a complaints procedure or the ombudsman.
Once in court, at the leave stage - to be renamed "preliminary consideration" - the present test is that a case will be allowed to proceed if there is an "arguable" case. Lord Woolf favours a test of a "realistic prospect of success or some other reason why the case ought to be disposed of at a substantive hearing". This will raise immediate concerns from those who act for applicants that this is a far stricter test than that presently in place and, consequently, fewer cases will be granted leave.
Unsurprisingly, Lord Woolf supports the Law Commission's recommendations that a liberal approach to the standing rules should continue to be encouraged and that "the applicant will have standing if he has been or will be adversely affected, or if it is in the public interest that the proceedings should be brought".
Lord Woolf also supports the courts' discretion to allow third-party interventions "in the applicant's interest and in the public interest". His proposal that costs be payable out of public funds in public interest cases would require legislation, and, if this is not forthcoming, he supports a judge's discretion not to award costs against the unsuccessful party.
Lawyers with public interest clients will realise this is no improvement on the current situation - no costs orders have been made recently, for example, in unsuccessful public interest cases brought by Greenpeace, the Joint Council for the Welfare of Immigrants, Shelter and the Refugee Council. Lord Woolf has resisted calls for "protective costs orders" to enable public interest applicants to know at an early stage of a case whether or not they will have a potential liability for their opponent's costs
Sensibly, the report proposes all private remedies, and a writ of habeus corpus, should be available in a judicial review case, and that "the court should be able to take into account any offer by the defendant to pay compensation". Lord Woolf also hopes that this new unified system will rid judicial review of its recurring procedural nightmare - the public/private law divide. He hopes that, in the vast majority of cases, it will not matter which procedure is used, as his new system will be flexible enough to accommodate actions on both sides of the divide.
It would be a major achievement if he is right. In cases of public importance, there will be a power to grant advisory declarations, which will increase the applications - for those who can afford it, as legal aid is unlikely to be available - for prior clarification from the judges on statutory interpretation without waiting for a test case to emerge.
Finally, Lord Woolf believes there is a "real need" for the resolution on circuit of cases which involve a wholly local dispute. This is a recommendation which is bound to find favour with practitioners keen to develop a local judicial review practice, but who are not prepared, as is necessary at present, to litigate in London every time a case arises.
Although there are some snippets of good news in the report for applicants, the general tone of Lord Woolf's judicial review proposals is one of restricted access and more judicial control over cases. Impecunious groups and individuals (who do not qualify for legal aid) aware of unlawfulness by public bodies will still be powerless in practice to call on the courts to come to their assistance. An inability to grasp this nettle is the biggest disappointment in this part of the report.
Stephen Cragg is a pupil barrister at 2 Garden Court and was previously solicitor at the Public Law Project.
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