“Ten Years of the Administrative Court in Wales: Success or Failure?”
By Sarah Nason (Bangor Law School) and David Gardner (No 5 Chambers)
At the 2019 Legal Wales Conference, David Gardner and Sarah Nason concluded that the Administrative Court in Wales has been a constitutional success and a jurisdictional improvement. On the other hand, the access to justice aims of ‘decentralising’ the Administrative Court in Wales, as well as in England, have been significantly undercut, potentially even reversed in some locations, by the impacts of legal aid reforms.
The Administrative Court in Wales
Since 1999 a ‘post box’ facility was available for applications for judicial review to be lodged in Cardiff where the matter concerned a Welsh public body or involved a devolution issue. However, cases were still largely administered and determined in London. Establishing a permanent Administrative Court in Cardiff was part of proposals made by a Judicial Working Group for Justice Outside London.
Decentralisation aimed to improve access to justice by allowing cases to be issued and determined locally reducing costs and inconvenience for ‘regional’ litigants and their lawyers. In Wales there was also a constitutional rationale that cases involving Welsh authorities and the rights of Welsh people should be determined in Wales. Not least due to the increasing divergence between the law applicable in Wales and that applicable in England, and that decentralisation could bolster and encourage the use of the Welsh language in court.
Since the ‘fully operational’ Administrative Court was established in Cardiff in April 2009 it has heard a number of claims of public and constitutional significance, we note just some of those here.
In R(Governors of Brynmawr Foundation School) v Welsh Ministers, the Governors challenged the Welsh Ministers’ decision to delegate the function of consulting upon and making proposals about the provision of 6th Form education at the School under s.83 of the Government of Wales Act 2006. On the question of whether the Welsh Ministers could delegate statutory functions Beatson J noted that the court will take into account the nature and purpose of the statute under consideration including whether it is a constitutional statute, specifically noting that the 2006 Act has constitutional status.
In R(Welsh Language Commissioner) v National Savings and Investments, the Commissioner challenged NS&Is decision to withdraw its Welsh Language Scheme. This was the first Administrative Court case to be issued and heard in Welsh and included interpretation of the Welsh Language Act 1993.
R(Sargeant) v The First Minister of Wales held that the First Minister’s control of the Operational Protocol governing the investigation into the death of Carl Sargeant AM, breached a legitimate expectation (founded on a press statement) that the investigation would be independent.
The Sargeant case was initially lodged in London and involved no Wales-based counsel. The permission hearing was held in London and had the claim failed at that stage an issue involving the lawfulness of the First Minister’s actions would have been fully determined in England. As it happened the case was ‘transferred’ to Cardiff for the substantive hearing.
According to Practice Direction 54D Administrative Court (Venue), the claim form in proceedings in the Administrative Court may be issued at either the Royal Courts of Justice in London or at one of the Regional Administrative Courts (including Cardiff). The Practice Direction includes the ‘general expectation’ that cases will be issued and determined at the location with which the claimant has the closest connection. This is also supplemented by case law presumptions (e.g., R(Deepdock) v Welsh Ministers and R(Condron) v Merthyr Tydfil County Borough Council) that cases involving Welsh public bodies should be issued and determined in Wales. In practice, however, a significant proportion of cases involving Welsh defendants are issued in London and often transferred out to Cardiff. In many cases this is due to the lawyers instructed being based in London (particularly counsel), in others it is largely to do with lack of awareness.
The process of transferring cases to the Administrative Courts outside London has become more efficient since 2017 when the power to make Minded to Transfer Orders was delegated from the judiciary to the Administrative Court Office Lawyers. For example, from 1 January 2019 to 16 September 2019, there were 87 claims issued in the Administrative Court Office in Cardiff, but an additional 34 claims were transferred in.
Decentralisation and Access to Justice
The Administrative Court in Wales was part of a broader ‘regionalisation’ programme. This had been contentious in some quarters, particularly among those associating the constitutional importance of judicial review with a centralised system of ‘elite’ highly specialised barristers and judges. Under this account of judicial review, the individual grievance is a ‘trigger’ to ensure that cases of legal and/or constitutional significance are addressed at High Court level, whether the individual is from Cardiff, Carlisle or Clapham is largely irrelevant. To an extent this view has been perpetuated in Wales, since although cases may be of unique legal or constitutional significance to Wales, some 80% of counsel appearing in substantive hearings in Cardiff have been from London-based ‘elite’ public law chambers. Welsh Government has committed to instructing more local counsel, but still considers there to be a lack of sufficient highly specialised experts in Wales.
On the other hand, research has disclosed that some three quarters of substantive judicial review judgments turn on their own facts having no wider implications beyond the parties to the case. Judicial review can be highly effective for individuals in Wales: E.g., in cases concerning the legal interpretation of provisions around learner travel ultimately leading to a school/local authority being required to make specific provision for a particular child, other examples have included urgent injunctions to ensure a vulnerable individual was not unlawfully moved from their current care home provision. It is these types of case that have tended to involve local solicitors and counsel.
Sarah Nason and Maurice Sunkin’s hypothesis was that ‘regionalisation’ could improve access to justice outside London by catalysing increased awareness of public administrative law, leading to the ‘clustering’ of legal services providers around the decentralised Courts. This, it was hoped, would begin to redress some of the ‘severe geographical imbalance’ in the incidence of judicial review litigation. In Wales, there has been a significant increase in the number of firms and individuals claiming ‘public and administrative law’ expertise (according to Law Society data). Although ‘regionalisation’ may not have been the direct cause (the pace of devolution itself is evident), the reforms did coincide with an increase in teaching administrative law in Welsh Universities, a book series (the Public Law of Wales published by University of Wales Press), revitalising the association Public Law Wales, and the instigation of the Public Law Project Wales Conference (which goes from strength to strength and is well attended by public bodies).
All this said, the number of other civil (non-immigration) judicial reviews across the Administrative Court as a whole has declined. From approx. 2,000 per-annum between 1996 and 2012, falling from 2013 onwards down to 1,597 in 2018. Caseloads have reduced in London and in every ‘regional’ Administrative Court. Worst hit have been Leeds and Manchester, where civil (non-immigration) judicial review caseloads have reduced by more than half since 2013. It is hard to escape that this reduction in caseload (and also a significant increase in unrepresented litigation) coincided with reforms to legal aid in judicial review. Many lawyers report that the so-called ‘chilling effect’ – of payment subject to permission success – has led to specialists moving out of judicial review and into other public law flavoured areas such as Court of Protection work. Some specialist law firms have closed down. Wales too has seen a reduction, with fewer judicial reviews being issued by claimants and solicitors with addresses in Wales nowadays than was the case before the Administrative Court opened in Cardiff ten years ago. Government aims to restrict the use of judicial review seem to have been largely successful, which is particularly worrying given that the anecdotal arguments for reform were debunked by empirical evidence.
Reflections and Recommendations
Even on the constitutionalised view of judicial review, where the individual’s grievance is not central, the progress of devolution is such that Welsh law claims should be issued and determined in Wales. Welsh Government’s aim to improve rates of instructing local counsel is to be welcomed, and other public bodies in Wales could follow suit.
On the matter of jurisdiction, whereas judicial review claims may be filled in Cardiff, Welsh statutory appeals in the Administrative Court (governed by CPR Practice Direction 52D) must be filled in Cardiff (para 27A.3(1)). We recommend that this latter approach be adopted for judicial reviews.
Wales has also shown itself capable of determining cases of broader UK constitutional and ECHR significance. R(Bridges) v Chief Constable of South Wales Police, heard in Cardiff, was the first UK case to raise the legality of Automated Facial Recognition technology and its compliance with ECHR Article 8.
However, the paucity of legal aid, continued lack of awareness of Welsh law, and to some extent a culture of individual dereference to authority, means that it can be difficult to identify and to fund cases where Welsh law would benefit from transparent, independent judicial interpretation, and which would pass the necessary threshold of ‘arguability’ on their individual facts. Here we recommend a power to refer points of Welsh law to the Administrative Court in Wales be given to other actors in the Administrative Justice system, in particular the Public Services Ombudsman for Wales and the Welsh Commissioners, potentially also to some advice sector bodies (though the parameters of the latter would need to be carefully thought out).
The experience of the Administrative Court in Wales demonstrates the power of judicial review as a constitutional fundamental, but also exposes some continuing perceptions of London-centric legal elitism, and the weaknesses of judicial review as a means of providing redress for individuals in Wales, especially when legal aid funding is a reserved matter. Wales has the potential to reconsider its wider administrative justice system; from legal aid, to the role of the devolved Welsh tribunals, and relationships between legal and non-legal means of providing redress. The Commission on Justice in Wales (due to report on 24 October 2019) has received significant evidence on these matters, which are also the subject of continuing research.