Judicial review and secondary legislation: What power does the court have to fix broken legislation?
In the case of Lazarov v Bulgaria the High Court found itself in some legal difficulty as it sought to deal with an appeal against an extradition judgment from Westminster Magistrates’ Court that was replete with mistakes.
The High Court found a catalogue of errors in the judgment including:
The latter mistake was particularly troubling as the Requested Person had sought to resist extradition on the basis that it would violate his right to family life protected by Article 8 ECHR. There was some consideration, given these errors and how awry the paragraph numbering had gone, as to whether the judgment was a poorly done copy and paste job. The District Judge responsible remained anonymous and his blushes were spared.
The High Court found that the errors had “the cumulative effect that the reasons simply cannot be considered as addressing the true and actual facts of this case at all”. It was then faced with the challenge of how to dispose of the case. The High Court felt that they were not in a position to allow the appeal on the basis that the District Judge would have been required, if properly directing himself, to order the Requested Person’s discharge. At the same it was felt that there could be a serious injustice if the High Court were to take no action “in a situation which may be relatively finely balanced for and against extradition” where “an order for extradition has been made on the basis of reasons which contain so many errors that they simply do not engage the true facts of the case at all”.
In the Immigration context the Upper Tribunal has a power to remit an appeal back to the First-tier Tribunal in certain circumstances but there is no such power in extradition proceedings when the High Court is hearing an appeal from a Requested Person. The solution, it was determined, was to be found in an application for judicial review of Westminster Magistrates’ Court but no such application had been made. Hasty arrangements for lodging were made on the day of the appeal hearing. At a rolled up hearing dealing with the judicial review and adjourned extradition appeal matters, the judge accepted both the application for judicial review and the application to file it out of time. The Magistrates’ Court judgment was quashed and a direction was made that the application for extradition must be reheard and reconsidered from scratch by a different District Judge, experienced in extradition.
The High Court expressed sympathy with the workload of extradition judges but also disquiet at the way in which the case had been managed. It was noted that upon receipt of the judicial review claim form, Westminster Magistrates’ Court had e-mailed the parties to say that the District Judge had “provided the incorrect judgment”. This was some six months after judgment had been made and after the High Court had refused permission to appeal on the papers on the basis that “the decision is not arguably wrong and the appeal has no reasonable prospects of success”. It was also noted that the appeal was “resolutely resisted” by the CPS Extradition Unit right up to, and during, the hearing in the High Court. The late e-mail from Westminster Magistrates’ Court was described as disclosing “a sorry state of affairs”.
The appeal raises interesting questions about the relationship between judicial review and extradition appeals. Judicial review is usually only available when there is no alternative remedy. In an extradition case similar to Lazarov, where there is a catalogue of errors at first instance and it is also at least arguable that the appeal should be allowed, it may not be clear whether an alternative remedy is available until judgment in the appeal, or a strong indication of what that will be, has been made. In this situation the Requested Person is faced with the unenviable choice as to whether to commence two parallel actions, to hope that their extradition appeal is allowed, or to hope that a High Court judge will show the same pragmatism that was demonstrated in Lazarov.
There was much talk about the exceptionality of the case and a statement that “[t]his judgment and my decision are no warrant or precedent at all for the incursion of judicial review into the field of extradition, which has a complete statutory framework.” Given the well-publicised problems with the underfunded criminal justice system, and the High Court’s own finding that there was a lacuna in the statutory framework it remains to be seen how exceptional the Lazarov case is.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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