Justice Outside London: Supplemental report

|Reports and Reviews
  1. The Main Report of January 2007 made various recommendations summarised in paragraph 1. The first recommendation was 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 these centres. This was linked with the recommendation that there should be two Queen’s Bench Division liaison judges to operate in tandem with the existing Chancery supervising judges; and that the first call on the Queen’s Bench Division liaison judges’ sitting time would be Administrative Court work out of London, supplemented, if necessary, by an additional Queen’s Bench Administrative Court judge when the liaison judge was not on circuit. The balance of the Administrative Court judicial work out of London would be done by circuit judges, trained and nominated for that purpose, sitting as section 9 deputy High Court judges. The recommendations have the support in principal of the Judicial Executive Board.
  2. The Main Report contains much detail of the overwhelming support for these proposals at the four regional centres (paragraphs 23 to 75 and Appendices F to K inclusive). It also contains at Appendix L reasons advanced in a memorandum by Mr Justice Collins, Roger Venne and Lynne Knapman for retaining London based central administration for all Administrative Court cases. These reasons are summarised and addressed in paragraphs 78 to 85 of the Main Report with the conclusion that the persuasive elements of the memorandum fall well short of outweighing the case for fully operational regional Administrative Court offices.
  3. Paragraphs 86 to 94 of the Main Report address the questions of judicial and administrative resources and make an assessment of the volume of cases which regional Administrative Court centres would attract. The Main Report did not presume to undertake any detailed assessment of administrative resources (but see paragraph 88). As to volume of cases, the report struggled for want of firm predicted data (see paragraph 90), but hazarded an assessment that one third of the present number of non-immigration and asylum claims might be brought locally so as to remain there (paragraph 93). There would be asylum and immigration cases as well and the indications were that in Leeds at least these would be numerous.
  4. At a meeting with the former Lord Chancellor in April 2007, at which the main topic of discussion was the proposal to take the Administrative Court out of London, Lord Falconer expressed a provisional view that the proposal was generally attractive. He was concerned about cost and needed to know, as the Main Report anticipated, what were estimated to be the additional administrative and other costs of taking the Administrative Court to the four centres out of London and what administrative cost savings would be achieved. He further wanted a fuller account of the people who would benefit from having the Administrative Court in the four centres and in what respects they would benefit.
  • See Appendices F to L below

Administrative arrangements and costs

  1. Stephen Fash under the aegis of Alastair Clegg has produced a report for the HMCS Operational Board whose main conclusions and recommendations are that the Board is asked to agree in principle to pursue the sequential establishment of regional offices of the Administrative Court in Cardiff, Birmingham, Leeds and Manchester. A copy of the report is at Appendix M. The report has important material in relation to judicial resources, as to which see paragraph 132 of this Supplemental Report below.
  • See Appendix M below

Further material from the regions

  1. The following are attached:
    1. Appendix N – further papers from the North East consisting of (i) a paper about the judicial, administrative and listing arrangements that are anticipated in Leeds; and (ii) a paper from HH Judge Simon Grenfell, the designated civil judge for Leeds and North Yorkshire, discussing the merits of the proposal and giving examples relating to housing and homelessness.
    2. Appendix O – further papers from Birmingham and the Midlands consisting of (i) a further report by Mr Justice Gibbs which addresses all of Lord Falconer’s main concerns – see especially (the first) paragraph 7 for an extended persuasive summary of benefits; (ii) an addendum by Mr Justice Gibbs about work involving NHS Trusts and an estimate of public law challenges to planning decisions; and (iii) a further Report from Birmingham Forward dated June 2007.
    3. Appendix P – further papers from the North West consisting of (i) a short paper about staffing and resources and (ii) a further paper from legal professionals dealing with benefits.
    4. Wales. There have been two developments since the Main Report. The first is that the Tribunal Service is being reorganised, with an intention that cases which arise in Wales will be administered and heard in Wales. This will include appeals to the second tier tribunal and there are likely to be tribunal appeals in Cardiff. Many of these appeals will have similarities with claims for judicial review and it is thought that the possibility of linking an Administrative Court office with a Tribunals office should be considered. It is understood that HH Judge Hickinbottom is involved in setting up the new service and developing its procedures.
    5. The second general development is that the political coalition in the Assembly has published a document called “One Wales” which discusses plans to move towards a wider devolution of the Administration of Justice generally to Wales. This may be seen as adding some weight to the constitutional arguments for an Administrative Court in Wales.
  • See Appendices  N to P below
  1. This additional material should be read with the Main Report and its Appendices. Given that the support in and around the four regional centres is, as the Main Report stated at paragraph 76, descriptively overwhelming, a bare bones summary of the anticipated benefits is as follows:
    1. Access to justice. All regional respondents agree that there is a significant number of potential claimants with viable Administrative Court claims who are put off bringing their claims because of the trouble and expense of having to bring them in London; and that there is little sense in having Chancery, Mercantile and TCC centres out of London, but not the Administrative Court.
    2. Wales. Paragraphs 56 to 66 and Appendix F and Appendix G of the Main Report make the very powerful additional constitutional case for establishing a properly operational Administrative Court in Wales.
    3. Costs and expenses. All regional respondents agree that there will be significant cost savings for claimants and for many defendants who are locally based. The cost savings will include the lower cost of time and travel for litigants and their lawyers for any matter which requires attendance at court or the court offices. Electronic communication is not a satisfactory substitute in a number of important respects.
    4. Types of claim. It is anticipated that most of the types of claim brought in the Administrative Court in London will be brought at the regional centres (with the exception of those referred to in recommendation 1(b) and paragraph 53 of the Main Report). Those specifically anticipated include claims relating to local government functions, health, community care, mental health, education, planning, compulsory purchase, housing and homelessness (in association with appeals under section 204 of the Housing Act 1996), immigration and asylum (not least in Leeds – see paragraph 74 of the Main Report), challenges to decisions of the parole board, prisons. See for a fuller list and examples pages 5 to 8 of the paper in Appendix P.
    5. Litigants. Individual and corporate claimants who live or who are based out of London and for whom the regional centres are more accessible and the numerous regionally based public authorities will benefit – see for example Appendix J page 22 for 30 supporting public authorities in the North East in additional to Leeds City Council; Appendix P pages 8 and 9 for details of North West local authorities; Appendix O for material about NHS Trusts in the Midlands; the final pages of Appendix O for details of local authorities in the West and East Midlands; and paragraphs 56 to 66 and Appendix F and Appendix G of the Main Report for the additional reasons available for Wales and the litigants concerned.
  • See Appendices F, G, J, O and P below

Judicial resources

  1. The number of QB judges nominated to sit in the Administrative Court who are able to be deployed in the Administrative Court is limited and on occasions severely limited. Paragraphs 18 to 21 of the Main Report address the deployment of Queen’s Bench judges generally. Paragraph 20 and Appendix B shows the general shape of the deployment of Queen’s Bench judges. Paragraph 20 explains some of the deployment pressures, saying that the minimum required number for the Administrative Court is now around 10, although this is rarely achieved in practice.
  2. The report of Stephen Fash refers to a recent report by David Brupbacher, which explains in detail current backlogs in the Administrative Court Office, concluding that 14 judges would be needed to eliminate the backlogs, and that 10 or more judges consistently would be needed to tread water. Realistically there is no prospect whatever of deploying 14 judges to the Administrative Court and little prospect of deploying 10 or more other than occasionally. This was achieved subject to some daily absences for other matters for about three weeks in March 2007, but this was exceptional.
  3. Paragraphs 45 and 46 of the Main Report explain that the greatest current pressure on the Administrative Court derives from asylum and immigration cases of which the most numerous are those colloquially referred to as the “AIT/High Court Opt-in Procedure”. The proportion of their time which nominated Queen’s Bench judges spend in considering and determining these applications is far too great, and the Judicial Working Group did not consider that this was an appropriate use of High Court Judge time.
  4. As Stephen Fash explains and as the Main Report recommended, establishing Administrative Court offices at the four regional centres with nominated section 9 circuit judges undertaking a significant amount of the judicial work should increase the total judicial deployment to Administrative Court work, thereby helping to ease the deployment pressure on the Administrative Court in London. It would only not do so, if new Administrative Court work generated by the existence of regional Administrative Court offices was greater than that which the additional judges could deal with. See paragraphs 87 and 106 of the Main Report for the recommendations for circuit judges nominated to sit as section 9 deputy High Court judges at the regional centres.
  5. Assuming therefore that the policy of not increasing the size of the High Court bench is maintained and that deploying sufficient Queen’s Bench judges to the Administrative Court in London under current arrangements to deal with the backlog is not feasible, the two recommendations in the Main Report:
    1. to establish fully operational offices of the Administrative Court at the four court centres with circuit judges sitting as section 9 deputies doing a significant amount of the work, and
    2. to enable AIT op-ins to be dealt with by section 9 deputies both regionally and in London are seen as viable means of relieving the pressure on the Administrative Court.
  • See Appendix B below

Next steps

  1. It is recommended that the next steps should be (a) to obtain the agreement of the Lord Chancellor and HMCS that this project should proceed, and (b) to establish a Project Board to oversee the implementation of the project. It is an important consideration who should be judicial members of the Project Board. They should, it is thought, include at least one, if not both, of the recommended Queen’s Bench liaison judges, who should therefore be identified soon.