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Readers of this blog will be familiar with the controversial reforms to the judicial review procedure in England and Wales (discussed by Elliott and by Bondy & Sunkin), premised on the need to reduce the burden it imposes on public services by reducing the time limit for certain types of cases, reforming the permission stage, and increasing the fees charged, and recently implemented by Civil Procedure (Amendment No. 4) Rules 2013, SI 2013/1412. Judicial review procedure in Scotland currently differs from England and Wales in having no equivalent of the permission stage, nor any fixed time limit within which to bring an application. However, notwithstanding that the rate of applications for judicial review per capita in Scotland is only around a third of that south of the border – 342 cases in 2010-11 (Scottish Government, Civil Judicial Statistics 2010-11) as against 11,200 cases in England and Wales in 2011 (Ministry of Justice, Judicial and Court Statistics 2011) – the 2009 Report of the Scottish Civil Courts Review (the ‘Gill Review’) noted that there had been a steady increase in the numbers of judicial review petitions and considered that these cases took up a disproportionate amount of court time. It therefore recommended following England and Wales by introducing a leave requirement and a three month time limit.
These recommendations have now been taken forward by the Scottish Government in its consultation on the Draft Courts Reform (Scotland) Bill. Section 84 of the Draft Bill amends the Court of Session Act 1988 to provide that:
The proposals have been welcomed by some of the respondents to the consultation – particularly, unsurprisingly, by public authorities. However, they clearly create additional barriers to access to judicial review in Scotland, and are open to criticism on two grounds. First, as with the recent English and Welsh reforms, they are based on inadequate evidence of their necessity. Secondly, there is a risk of producing unintended consequences that may increase rather than reduce the burden on court time.
The Gill Review’s rationale for recommending the introduction of a leave requirement was that it would assist in encouraging early concessions by respondents in well-founded cases and provide a means of filtering out unmeritorious applications, thereby freeing up court time to deal more expeditiously with cases in which leave is granted. A striking feature of both the Gill Review and the Scottish Government’s consultation paper, however, is the complete absence of hard evidence put forward to support the proposition that there is a significant problem in Scotland with unmeritorious cases being brought. No statistics are given as to the outcomes of judicial review applications, while the disproportionality of the amount of court time devoted to such cases is inferred purely from the fact that they take up a higher proportion of sitting days than the total number of petitions would suggest, without any analysis of the importance or complexity of judicial review applications compared with other types of cases. The only extended empirical study of judicial review in Scotland (Mullen, Pick & Prosser, Judicial Review in Scotland, 1996), which concluded that neither leave nor a time limit was necessary, is not cited in either paper, and the more extensive English empirical literature is used highly selectively. Bondy & Sunkin’s research for the Public Law Project, which found a high refusal rate at the permission stage, is relied upon to support the conclusion that the English procedures work well in filtering out unmeritorious claims and prompting early settlement. But there is little or no discussion of the nuances of that research, nor consideration of its applicability in Scotland.
Bondy & Sunkin themselves are reluctant to conclude that a high rate of refusal of permission is evidence of a high number of unmeritorious applications. For instance, they note that the refusal rate is significantly higher where cases are decided on the papers rather than at an oral hearing. They also note the impact of tight time limits in increasing the likelihood of weak claims and artificially inflating the caseload by reducing the time available for settlement. In addition, neither Gill nor the Scottish Government considers the potential impact of the introduction of a leave stage – and consequent applications for reviews and appeals – on both court time and litigation costs. Murray Stable, in their response to the consultation, point out that the English system is both slower and more expensive than the current Scottish process, and that legal aid is not currently available for leave proceedings in Scotland. Finally, there is no mention of the objection in principle to the introduction of a leave requirement, i.e., that it makes access to judicial review dependent upon the exercise of judicial discretion. Bondy & Sunkin’s research confirms earlier findings of a high variation in the rate at which permission is granted by different judges. They attribute this to the subjective nature of the ‘sufficiently arguable’ criterion applied south of the border, and report a widespread perception that judges take account of factors other than the legal merits of cases. The ‘real prospect of success’ test proposed by the draft Courts Reform (Scotland) Bill would appear to set an even higher hurdle for Scottish applicants to overcome, without being any less subjective.
As the Faculty of Advocates has stated in its response to the consultation, the real problem with judicial review in Scotland is arguably not that there are too many cases, but that there are too few, especially outwith the immigration and asylum field which, as in England and Wales, dominates the judicial review caseload. Insofar as there is thought to be a problem in that particular area (and again there is no evidence), reforms have already been introduced to try to promote early settlement by requiring prior notification of applications for judicial review to the UK Border Agency. Moreover, the Court of Session could follow the English lead by transferring more of the immigration and asylum caseload to the Upper Tribunal, but so far has not done so, other than in relation to cases challenging procedural rulings or procedural decisions of the First Tier Tribunal (Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008, SSI 2008/357).
Although the introduction of a leave requirement seems to impose an unnecessary additional hurdle in the path of applicants for judicial review, the three month time limit would appear to be the more significant change and the greater barrier to access to justice.
As noted above, there is presently no specific time within which an application must be brought in Scotland, but applications can be dismissed for undue delay under the common law doctrine of mora, taciturnity and acquiescence. Until recently, this was a relatively rare plea in judicial review cases but there has been a marked increase (the reasons for which are not clear) in its use in the past couple of years: a Westlaw search reveals sixteen cases in which the issue was raised since 1 January 2011, compared with only four in the previous two years. However, mora works quite differently to a statutory time bar. For one thing, the delay in bringing proceedings must be unreasonable, which is judged in all the circumstances of the case. Secondly, there must be taciturnity and acquiescence as well as delay – essentially failure to object to the impugned decision and passive acceptance of its consequences. The plea is therefore successful relatively infrequently, although there is clearly scope for inconsistency in its application. For example, in McGinty v Scottish Ministers  CSOH 163, a mora plea was upheld in relation to a challenge to the legality of the Scottish Ministers’ conduct of the strategic environmental assessment of their second National Planning Framework brought a year after notice of the assessment was published in the Edinburgh Gazette. Although the petitioner claimed that he did not become aware of the proposal until seven weeks before he lodged his petition for judicial review, the court held that he ought to have been aware of it earlier. By contrast, in OWA v Secretary of State for the Home Department  CSOH 52, a mora plea was rejected in relation to a challenge to an immigration decision taken four years earlier. The petitioner had understandably failed to appreciate the significance of a stamp in her passport, and hence could not be said to have acquiesced in the decision. As in England and Wales, there can also be considerable uncertainty as to when time begins to run in relation to multi-stage or continuing decisions, and differing judicial attitudes as to the reasonableness of delaying resort to litigation (compare, e.g., Packard Ptnr  CSOH 93 and Portobello Park Action Group Association v City of Edinburgh Council  CSIH 69.
The Gill Review took the view that mora was undesirably vague and not well-suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies. In such cases, it argued, there was a public interest in challenges being made promptly and resolved quickly, hence it recommended the introduction of a fixed time limit. Once again, however, there was a dearth of hard evidence offered in support of this proposal. In fact, the only evidence provided as to the existence of a problem of undue delay was an anecdotal claim by one respondent government agency that it was still being served with applications in relation to immigration and asylum decisions several years after the they had been taken. This, though, is an area in which the case for fixed time limits is particularly weak because decisions rarely have implications beyond the immediate parties. Similarly, in response to empirically-based arguments that the three month time limit in England and Wales causes problems, particularly for vulnerable applicants, Gill preferred the viewed expressed by ‘a number of our respondents … that the time limit in England and Wales does not seem to unduly inhibit well-founded claims.’ (para 37).
Of course, the draft Bill does contain provision for the time limit to be waived in appropriate cases. Nevertheless, a statutory time bar shifts the burden of proof from the respondent to establish that the delay was unreasonable to the petitioner to prove that it was not. Moreover, there is a worrying suggestion in the Scottish Legal Aid Board’s response to the consultation on the draft Bill that petitions brought after three months are unlikely to obtain legal aid. Accordingly, the probable consequence of the introduction of a time limit is that, in future, applications which would be heard at the moment will not be brought, or will be refused leave. In addition, it is bound to produce more litigation concerning whether the time limit has been breached or ought to be waived.
Another unintended consequence of the reforms is likely to be increased litigation over choice of procedure. In Scotland, judicial review is an exclusive procedure for cases invoking the supervisory jurisdiction of the Court of Session. However, the Supreme Court has recently confirmed in Ruddy v Chief Constable, Strathclyde Police  UKSC 57 that it does not have to be used when the questioning of a public law decision is only ancillary to the establishment of some other form of action. According to Lord Hope, the test is whether or not the decision complained about has to be reviewed and set aside in order to provide the litigant with a basis for his or her claim.
The danger that cases might be time-barred because they are erroneously brought via the wrong procedure is partially addressed via the proposal in the Consultation Paper to abolish the distinction between ordinary and petition procedure in the Court of Session (and in any case provision already exists for transferring cases into and out of the judicial review procedure – chapter 58.12 of the Rules of the Court). However, it is likely that there will be an increase in deliberate attempts to circumvent the judicial review procedure and so to avoid the imposition of the time limit. Since the test laid down in Ruddy appears easier to state than to apply (see, e.g., Shehadeh v Advocate-General for Scotland  CSOH 196), it seems inevitable that more sterile procedural disputes of the type that caused such difficulties in England and Wales in the wake of O’Reilly v Mackman  2 AC 237 will arise.
It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving. It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change. One can only hope, therefore, that the Scottish Parliament will oblige it to do so.
Aileen McHarg is Professor of Public Law at the University of Strathclyde.