Procedures and Ouster Clauses - Judicial Review

What are the 3 procedures for judicial review?

Standing

Time Limit

Permission

What is standing?

Where an applicant has “sufficient interest” in the matter

From Senior Courts Act S.31 (3)

Is the test for standing difficult to pass?

No. Courts have adopted the liberal but dissenting interpretation from Lord Diplock in Inland Revnue Commissioners.

Anyone dirfecgly impacted will have standing

Any pressure groups or public interest litigants will likely have standing (Plantagenet Alliiance)

What is the time limit for judicial review

Claimants must apply “promptly and, in any event, within 3 months” of the conduct giving rise to the claim.

From Civil Procedure Rules, Rule 54.5(1)

Can the time limit change?

It can be made shorter by statutory stipulations (Civil Procedure Rules, Rule 54.5(3))

Courts can refuse permission or remedies for applications made within the time limit if they otherwise feel there has been “undue delay” (Senior courts Act S.31(6))

Authority for applicants needing permission?

Civil Procedure Rules, Rule 54.4

How does a party get permission?

Excpet for particularly urgent cases, parties should generally follow the ‘Pre-Action Protocol for Judicial Review’

• Send a letter to the public authority involved

• Submit a claim form to the Admin Court

• Give interested parties 21 days notice to contest the claim

Permission dependant on the courts accepting the preliminary arguments put forth by the parties (Yaxley-Lennon)

What is an ‘Ouster Clause’?

A provision in an act of parliament that states a power or decision is not justiciable

How have the courts treated Ouster Clauses?

They have dodged Ouster Clauses by interpreting the clauses to render them effectively ineffective (Anisminic and Regulations of Investigatory Powers Acr 2000; Privacy International)

• Whether an ouster clause will be interpreted liberally will depend on the judges in court

• Lord Carnforth and Lady Hale expressed the opinion the courts should always be able to scrutinise public decisions regardless of statutory limitations in order to preserve the Rule of Law

• Lord Sumption expressed the courts should give effect to Parliamentary Sovereignty; that for the courts to take it upon themselves to disregard the provisions would in itself be a breach of the Rule of Law