Justice Outside London: The Administrative Court

|Reports and Reviews
  1. At present the Administrative Court is administered in and sits usually only in London at the Royal Courts of Justice.
  2. The jurisdiction of the Administrative Court is mainly to hear claims for judicial review, statutory review and appeals. A list of the various matters within the jurisdiction of the Administrative Court is at Appendix C Part A of this report. Part B of that Appendix lists those matters which must be or are usually heard by a Divisional Court.
  3. The core jurisdiction and procedure derive from section 31 of the Supreme Court Act 1981 and Parts 8, 52 and 54 of the Civil Procedure Rules. Proceedings are started by filing a modified Part 8 claim form or appellant’s notice. The court’s permission is required in a claim for judicial review. Applications for permission are put before a single judge for decision on the papers. If permission is given, the claim may proceed to an oral hearing. If permission is refused on paper, the claimant may request the decision to be reconsidered at a hearing. Defendants and interested parties served with the claim form must file an Acknowledgement of Service in due form within 21 days of receiving the claim form, if they wish to take part in the judicial review. There may be written evidence. The court hears oral evidence very rarely.
  4. This bare summary of the procedural structure of the Administrative Court indicates the nature of the administrative and judicial resources that are required. Administrative staff are needed to receive, process, organise and distribute the documents at the various stages of the proceedings. There is a degree of judicial and administrative case management. Listing officers are required. Judges are needed to consider and decide permission applications on paper and in court, to give case management directions, and to conduct and determine hearings.
  5. The existing Administrative Court office in London consists of about 60 staff headed by Roger Venne, who in addition to being Registrar of Criminal Appeals is Master of the Crown Office (Administrative Court) and Lynne Knapman, Head of the Administrative Court office. There are in addition 8 lawyers. The general administrative work is specific to the jurisdiction but not intrinsically more difficult than other court administration. It concentrates on case management by the legal and administrative staff.
  6. The volume and type of cases currently dealt with in the Administrative Court are indicated in statistics which we attach at Appendix D.
  7. The judges who conduct the judicial business of the Administrative Court are those High Court judges nominated for that purpose and a number of section 9 Deputy High Court judges. There are currently 39 nominated judges, of whom 34 are QB judges and 5 Family Division judges. There is a lead judge of the Administrative Court, currently Mr Justice Andrew Collins. Some of the nominated judges are also nominated to hear SIAC cases, including the President of SIAC, currently Mr Justice Mitting. One retired High Court judge, 3 circuit judges, the Presidents of the Land’s Tribunal and the Competition Commission and 14 practitioners who are all Queen’s Counsel are authorised to sit in the Administrative Court as Deputy High Court judges.
  8. For constitutional reasons, some claims for judicial review should be heard by full High Court judges, for example if the defendant is a central government department. It is, however, we think, questionable whether this principle needs to extend to every routine claim where the nominal defendant is a Secretary of State and no point of general principle is raised.
  9. The pressure of work in the Administrative Court has increased in recent years and is at times acute. On a good day, the number of nominated judges actually deployed to the Administrative Court is in the order of 9, although this is barely enough. Often there are fewer than 9 because of the exigencies of deployment – see generally Appendix B.
  10. The greatest current pressure derives from asylum and immigration cases. Of these, the most numerous are applications under section 103A of the Nationality, Immigration and Asylum Act 2002 for an order requiring the Asylum and Immigration Tribunal to reconsider its decision on an appeal. The statutory time limit for making such an application is 5 days, subject to section 103A(4)(d) of the 2002 Act. Procedural rules for these applications are in Section III of Part 54 of the Civil Procedure Rules. By Rule 54.33, the applications are considered by a single judge on paper without a hearing. A more detailed account of this procedure, which is referred to colloquially as the “AIT/High Court Opt-in Procedure” is given in Appendix E which includes on its third page statistical information.
  11. The proportion of their time which nominated judges currently spend considering and determining these applications is too great. Each case is intrinsically important, but the applications are numerous and repetitive. We do not consider that this is an appropriate use of High Court judge time. The two members of this Working Group who are nominated Administrative Court judges and who have direct experience are strongly of this view. We are aware that there are arguments for not removing this work from High Court judges. The main such arguments are that the decisions under review are those of judges of equivalent status to senior circuit judges; and that the decision is final and not capable of being appealed.
  12. Paragraph 3 of the Part 54 practice direction provides that a claim for judicial review may be brought in the Administrative Court in Wales where the claim or any remedy sought involves a devolution issue arising out of the Government of Wales Act 1998 or an issue concerning the National Assembly for Wales, the Welsh Executive or any Welsh body (including a Welsh local authority), whether or not it involves a devolution issue. Such claims may also be brought in the Administrative Court at the Royal Courts of Justice. Paragraph 5.4 of the practice direction also concerns devolution issues.
  13. Apart from Welsh matters within paragraph 3 of the practice direction, all judicial review and other claims in the Administrative Court have to be brought in London, with the obvious inconvenience and additional expense that this might cause for claimants, defendants, interested parties and their lawyers. It is the overwhelming view of those who attended the open meetings in the 4 regional centres and of others from who we have received written representations that this is prejudicial to those who do not live and work in London or the South East. There is a strongly held view that people should be enabled to bring Administrative Court claims out of London in the regions and to have them heard there. They make what we regard as a very strong, economic, business, professional and social case for doing so.
  14. Although there is nominally an Administrative Court in Wales, it scarcely operates as such. Claims within paragraph 3 of the practice direction may be issued in Cardiff. A small section of the court office there receives the claim forms when they are issued. Until his very recent appointment as a Queen’s Bench judge, HH Judge Wyn Williams QC, as he then was, one of the circuit judges then authorised to sit in the Administrative Court as a Deputy High Court judge, from time to time dealt with emergency Administrative Court applications. There was an unresolved question as to the extent of his jurisdiction in this respect. But otherwise claims issued in Cardiff are dispatched to the Administrative Court office in London to be administered there. With some ad hoc exceptions – notably initiated by Mr Justice Davis, the second Presiding Judge of the Wales and Chester Circuit who is a nominated judge – Welsh cases are heard in London even if they have been issued in Cardiff. The Administrative Court office in Cardiff has been described to us as little more than a post box. The reason why most of the cases are heard in London is because, under the current London based system, deploying a judge to hear a case out of London is pragmatically wasteful of judge time. Saving scarce High Court judge time is usually regarded, rightly or wrongly, as a decisive criterion in determining where individual cases should be heard. The reason why deploying a judge out of London is wasteful is because the cases are administered in London; and because constructing from this a viable list of cases to be heard out of London is in practice very difficult. Attempts to do this in the recent past in order to deploy a nominated judge to sit in Cardiff, Birmingham, Manchester or Liverpool have generally not been regarded as satisfactory, not least because many of the selected cases have settled, with no locally administered list from which other cases may be substituted.

Recommendation for Administrative Court in each of the four regions

  1. Our recommendation is that fully operational offices of the Administrative Court should be established in Cardiff, Birmingham, Manchester and Leeds and that judges should regularly sit to hear Administrative Court cases in those centres. This is a conclusion which we have reached on a balance of competing considerations, not all of them in favour of the conclusion. We summarise the arguments below and exhibit detailed appendices. Those in favour of the conclusion are more voluminous than those against: and mere volume is not by itself persuasive. The fact that we do not reach the contrary arguments for several pages does not diminish their force. Nor is this intended to be dismissive. But in the end we think that the balance is strongly in favour of the conclusion.
  2. The case for establishing the Administrative Court outside London is vigorously supported by interested parties in each of the centres, as indicated below. The essential point is proper access to justice is not achieved if those in the regions can only bring judicial review and other claims in the Administrative Court in London. There would be substantial saving in public and private expense. The present system discriminates against those who are not in the South East of England.
  3. Subject to the continued need for an appropriate practice direction for Welsh cases (see below), we envisage that claimants should be able to choose at which of the 5 offices of the Administrative Court they would issue their claim; and that the court would have the normal power upon application to transfer the case to a different centre. For many claims, for example those against local authorities, a locally based venue would be uncontentious. We appreciate that some public bodies, notably government departments, may prefer to have claims against them conducted in London. Some public bodies have regionally dispersed offices with no geographical connection with the claimant. But we do not think that proper access to justice is achieved if claimants are always expected to travel for the convenience of a public body or department. In such cases, the court would nevertheless have a discretion to transfer.
  4. We have considered whether any matters within the jurisdiction of the Administrative Court should be retained exclusively in London. Upon reflection, we do not consider that asylum and immigration matters (including “Opt-ins”) should be excluded from regional jurisdiction. Although many of these cases derive from the Asylum and Immigration Tribunal in London, there are regional offices of the AIT. We do consider that applications under the Terrorism Acts 2000 and 2005 should normally be issued in London, since they require particular judges and special security. We also consider that applications which must be heard by a Divisional Court (see Part B of Appendix C) will normally be heard in London, since convening a very occasional Divisional Court out of London (which would usually require a Lord Justice as one member of the court) would not normally be justified. Because of Wales’ unique constitutional position somewhat different considerations may arise in relation to Divisional Court cases from Wales which might be listed for hearing, if court time permits, during a period when the Court of Appeal is sitting in Wales and when a Lord Justice is available.
  5. For rather different reasons, we consider that matters which can and usually are heard by a Divisional Court (i.e. those in a criminal cause or matter – see Part B of Appendix C) should for the moment normally be heard in London. Not only do they normally require a Divisional Court, but there is, we think, a strong case for transferring these criminal matters under the umbrella of the Court of Appeal Criminal Division. Further, the anomaly remains that appeals in these cases lie directly to the House of Lords. We do not embark on a detailed discussion of this, since it is beyond our present remit. It would need primary legislation.
  6. These suggested exclusions do not greatly diminish the force of the case for having a fully operational Administrative Court out of London, since they do not numerically account for very many of the cases.