Open to review
18 November 1997
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The cascade of judicial review case law continues. Michael Fordham takes a look some of the most important recent cases in this increasingly fertile area of the law. Michael Fordham is a barrister specialising in judicial review at 2 Hare Court. He is author of the Judicial Review Handbook and editor of the quarterly journal, JR.
Freeze the frame on a typical working day. There will have been a judicial review case reported in The Times, one in that week's All Englands, another in its Weeklies. And the current issues of specialist law reports from housing to immigration, planning to education, are each a judicial review multiplex.
Whether you are looking to win your next judicial review, or simply to bluff your way at the Crown Office Ball, here is a quick crib of 1997 cases.
Turning first to the law of judicial review, two particularly fertile areas focus on rights and resources. Each has spawned a line of prominent cases.
Rights cases attract enhanced scrutiny by the courts, often with dramatic effect. In JCWI, regulations removing benefits from asylum seekers were struck down because Parliament had conferred no clear power to override fundamental rights. The asylum/benefits context, and the parliamentary and governmental responses to JCWI, has led to further interventionist cases, the latest being Jammeh.
In Witham, the JCWI approach was used to strike down the Lord Chancellor's court fee increases. Even in Blood, Diane Blood defeated the sperm-bank quango by deploying her Euro-rights card (prima facie right of access to medical services in another member state).
In resources cases an important question rumbles on. Suppose a local authority is statutorily required to provide for peoples' needs. Is the authority allowed to modify its assessment of what people need by reference to what it feels it can afford?
In Barry, the House of Lords said "yes" in the context of the needs of the disabled. But this unconvincing three-two has given rise to sequels, of which two have already reached the Court of Appeal.
In Tandy, two of the four judges so far have applied Barry in the context of "suitable" educational provision, while another two have distinguished it.
In Help the Aged, the Court of Appeal sidestepped Barry in the context of statutory "need of care and attention", intervening on other grounds.
A third area is the substantive unfairness/legitimate expectation debate. When can an applicant's expectations found a substantive (as opposed to a purely procedural) challenge?
The key is conventional "irrationality", according to the Court of Appeal in Hargreaves, rejecting any stronger principle as "heresy". However, this ignores a line of substantive unfairness cases, into which Lord Hope in the House of Lords has already skilfully tapped in Pierson. Perhaps Hargreaves is the heresy.
Turning to the practice and procedure of judicial review, there emerge four recent cases of significance. Each involves a curtailment principle.
Ashworth enables the judge at the substantive hearing to restrict argument to those points on which leave was specifically given, and not points on which it was refused.
A restricts the delay points a respondent can take at the substantive hearing, to exclude arguing want of any "good reason to extend time".
On this view, any respondent or third party wishing to take that point must mobilise at the leave stage.
Dixon reinforces the liberal approach to standing whereby locus standi at the leave stage is restricted to filtering out "busybodies".
Gordon Rye curtails that troublesome exclusivity rule which required public law points to be litigated only by Order 53 and no other means (for example, writ action). Rye focuses on practical justice and anti-technicality.
Finally, a warning. This article is a perishable, with a short best-before date. There will soon emerge new cases of significance and interest. We could soon be burying Hargreaves, A and even Barry. Look out too for two Fayed cases: on natural justice in citizenship and reviewability of the parliamentary "sleaze" commissioner, Sir Gordon Downey.
Keeping abreast of judicial review is like doing the ironing, a never-ending task where carelessness can leave you with your fingers burned.