Judicial review during the Covid-19 pandemic (Part I)
By Joe Tomlinson (University of York), Jack Maxwell (Public Law Project), Jo Hynes (University of Exeter), and Emma Marshall (University of Exeter).
This piece originally appeared on the Admin Law Blog on 26 May 2020 and can be found here. It is reposted with permission and thanks.
The COVID-19 pandemic raises at least two important questions for judicial review in England and Wales. The first is about process: how is judicial review operating in a time of social distancing, when most court processes have quickly shifted to a remote format? A second, related question is about litigation patterns: how are people using judicial review to challenge the Government’s response to COVID-19 itself?
In this two-part post, we offer some tentative answers to these questions. This first part examines how the Administrative Court’s amended judicial review procedure has been working in practice during the pandemic. The second part will analyse how judicial review has been used in relation to COVID-19 over the past two months.
Remote judicial review during the COVID-19 pandemic
A series of measures have been introduced to ensure that judicial review in the Administrative Court can continue throughout the COVID-19 pandemic. There has been a rapid shift from traditional oral hearings to remote hearings, with documents now filed electronically and hearings conducted by telephone or videoconference.
This change raises a simple question: how is this new system working in practice? We have recently published a working paper which reports the first empirical findings on this question–it is available here. The paper is based on interviews with 13 lawyers who have participated in remote hearings in Administrative Court over the past few weeks. The paper sets out in detail the routine workload of the Court, the various steps which have been taken in response to COVID-19, and the details of our method. Here, we set out our key findings.
In general, interviewees were grateful that judicial reviews were still able to go ahead in the Administrative Court. Many expressed their appreciation for the efforts of Court staff to facilitate this. The responses reflect patience and problem-solving attitudes from all parties towards technical or practical issues. Many appreciated this ‘just get it done’ approach and sense of goodwill in difficult circumstances. Interviewees also valued the flexibility of being able to conduct hearings listed all over the country from their own homes.
Interviewees emphasised that, for the new system to run effectively, it was essential to ensure that everyone had the same bundle of documents and all the necessary paperwork was in place prior to the start of the hearing. Many interviewees felt that the Court was generally handling this well. In particular, one interviewee noted the Court’s responsiveness, which enabled an urgent application to go ahead without delay. In some cases, it fell to the lawyer involved to proactively contact parties to ensure that everyone was speaking to the same documents. However, Court staff were often able to take on this vital role, including helping parties to upload bundles. Several weeks into the new system, the Court also seems to now be giving parties more notice about upcoming remote hearings, which a number of interviewees highlighted as an improvement. This gave parties sufficient time to set up the technology and make any necessary arrangements in terms of communication with clients or instructing solicitors during the course of the hearing.
Many interviewees noted that the significance of effective and responsive Court staff in enabling remote hearings. Not only was this seen as vital in maintaining effective case management prior to the hearing, but the ‘marshalling role’ of the clerk before and during the hearing itself was also seen as particularly constructive. Court staff generally circulated details to the parties about joining hearings and often dialled parties in for audio-only hearings. During the hearing itself, clerks sometimes provided impromptu technical support, dialling parties back in if a connection temporarily failed or turning off a judge’s camera at the end of a session.
A number of interviewees highlighted the value of test calls scheduled in advance of the hearing. These ranged from several days in advance, to the day before a morning hearing, or the morning before an afternoon hearing. As one interviewee put it: ‘[i]t was a very good move to make sure everyone had Skype for Business up and running.’ This ‘tech rehearsal’ process, as one interviewee called it, ensured that when it came to the hearing, all parties were familiar with each other (which was particularly important for an audio-only hearing) and the technology. In cases without a pre-hearing test call, delays at the start of hearings were common, ranging from half an hour to an hour. Interviewees appreciated the understanding shown by the Court and other parties in giving them time at the beginning to set up. In one instance, the Court gave a barrister an hour to set up their instructing solicitors on the video conference and they appreciated this time being afforded to them. Hearings with scheduled pre-hearing test calls largely avoided these preliminary technical issues and the consequent time delays.
Interviewees appreciated instances in which the judge gave comprehensive introductory remarks. This generally included introducing the participants, outlining how the hearing would proceed, and noting any changes to court etiquette that were required, such as muting microphones when not speaking. Alongside a pre-hearing test call, many interviewees felt that a thorough introduction by the judge suitably framed the hearing and set the tone for the ensuing proceedings.
Interviewees were generally pleased with the Administrative Court’s apparent practice thus far, with one interviewee noting that ‘it seems to be a step ahead’ of other comparable jurisdictions within the courts and tribunals system. Still, a number of interviewees felt that Administrative Court cases, by their nature, were often more suitable for remote hearings: submissions are often very focused on specific points of law, litigants are rarely in court, and there is generally no live evidence to test. As one interviewee put it:
My view is it worked very well… I think it was really because of the nature of the case… it was really only two issues in dispute. We had already been circulated the papers amongst us. So it was really just a case of focused submissions on those two central issues with everybody having read the relevant documents, so entirely amenable to a telephone hearing.
Many interviewees felt a remote hearing was appropriate for the particular case they presented in the Administrative Court, but expressed concerns about the use of remote hearings in other settings or in other circumstances. Two interviewees had conducted judicial reviews in the Administrative Court where a litigant was unrepresented. This presented a number of issues. For example, one litigant in person did not have access to the bundle or to video conferencing technology, which meant that the hearing had to take place via telephone and at a slower pace to compensate for their lack of bundle access. One litigant in person began to cry during the hearing, while another was cut out mid-way through their submissions by technical problems. In each case, it was difficult for the judge to respond effectively to these problems within the timeframe of the hearing. Whilst the interviewees considered that, in these instances, the issues were ultimately handled well and did not obstruct progress, they expressed concern about the experiences of litigants in person in remote hearings more generally. In particular, one interviewee was concerned about a litigant in person’s ability to comprehend the consequences of a remote hearing. A number of interviewees also felt that in more complex cases, such as those with ‘significant debate’ or where a substantial amount of case management had not already been completed prior to the hearing, they would be less comfortable conducting a hearing remotely. There was also concern that hearings that were more ‘document heavy’ would be more difficult to conduct efficiently in a remote configuration.
Whilst the interviewees recognised the present necessity of conducting hearings remotely, they also saw in-person hearings as ultimately preferable in most instances. This was partly due to a number of challenges arising from the use of telephone or video conferencing technology. Common issues included problems logging into the remote hearing, and calls suddenly freezing or dropping out when an internet connection failed. These were largely navigated with patience, but could be frustrating for participants who were cut off in the middle of a sentence and lost their flow. Even when the technology worked well, access to the necessary hardware was a frequent problem, e.g. a need for two screens when engaging with extensive paperwork or lay clients without access to a computer. One interviewee noted that telephone hearings could generate a particularly disruptive issue: if a hearing overran, the participants of the next hearing would dial in at the allotted time, only to interrupt the late-running hearing that was still on the line. As each participant dialled in, their entry would automatically be announced and the judge had to wait until everyone who was expected to join had done so before explaining that they should leave and return to the call at an agreed later time.
The use of the audio or video link also made it more difficult for participants to take instruction from clients or solicitors and for judges to deliberate during a hearing. Interviewees developed workarounds for this challenge, such as communicating with others via WhatsApp or text message. Some representatives had multiple ongoing conversations at the same time and were concerned about the level of distraction this involved. One interviewee noted the potential for breaches of confidentiality with the use of audio or video links. In one instance, witnessed in a break before judgment was handed down, one participant disconnected their video connection but forgot to mute their microphone. This led to them inadvertently broadcasting their informal discussions with colleagues and some frantic emailing to alert them to what they had done.
Many interviewees highlighted the challenge of not being able to see how submissions were being received, particularly by the judge, during both telephone and video hearings. Consequently, it was hard to establish whether the judge had grasped a certain point, or to spend longer elaborating on it. It was also more difficult to get a sense throughout the hearing of the judge’s likely decision on the case. One interviewee noted that judges were less ‘interventionist’ than they might be in an in-person hearing:
[I]t’s more difficult to be interventionist with video streaming because of the delays and problems of over-speaking, and so people, naturally, I think, sort of sit back and listen more than they would otherwise. That is obviously a disadvantage for debate and effective public hearings.
This was frustrating for some interviewees, as they felt they were not always able to adequately address points during the hearing and would only hear what the judge really thought in the final judgement. Overall, interviewees felt that they were ‘fighting an uphill battle’ on this front, which primarily stemmed from their limited ability to engage the judge. One interviewee noted that remote hearings called for ‘a slightly different style of advocacy,’ but that without feedback from other participants, it was difficult to gauge what this style was.
A number of the interviewees’ hearings had a press or public presence. While some saw the process of gaining access to remotely observe hearings as ‘quite easy to arrange,’ others noted instances where there was a struggle immediately before a hearing for press to be given the login details to observe the hearing remotely. One interviewee also remarked that it was not clear whether the court was exercising its power under Practice Direction 51Y of the Civil Procedure Rules to make the hearing private and that this should be made clear to all parties.
Multiple interviewees conducted their hearings via telephone as this was the platform chosen by the Court, but the majority said that they would have preferred to conduct the hearing via video link. In one instance, the Court opted for a telephone hearing as there were technical difficulties with the Skype hearing initially scheduled. In another instance the Court chose a telephone hearing because the judge was struggling to get to grips with Skype. On other occasions, it was not clear why the Court chose an audio-only link. Interviewees found telephone links exacerbated the problem of speaking over one another and made it even harder to engage the judge. Audio-only links also created greater feelings of disconnection from the other participants, not least because whilst conducting a telephone hearing, as one interviewee noted, participants are left ‘just staring into the abyss.’
Our initial findings suggest that there is support for the judicial review process continuing during the COVID-19 pandemic and that remote hearings have certain strengths. However, there are also various technical difficulties and remote hearing are not seen as universally appropriate, even in a heavily ‘law-focused’ jurisdiction such as judicial review. We are now collecting further data on how the Administrative Court is operating during the pandemic. Data collection by the Administrative Court itself—including, critically, on case outcomes linked to remote hearings—would also assist in the collective endeavour of ensuring the Court is both working and seen to be working in these extraordinary times. The developing experience of judicial review in these unusual circumstances may, if properly studied, provide important insights about the future of the system, and remote justice more generally, after the pandemic.
Dr Joe Tomlinson is Senior Lecturer in Public Law, University of York and Research Director at the Public Law Project.
Jack Maxwell is Research Fellow in Public Law and Technology at the Public Law Project.
Jo Hynes is ESRC Research Fellow at the Public Law Project and a Ph.D Candidate at the University of Exeter.
Emma Marshall is Research Fellow at the Public Law Project and a Ph.D Candidate at the University of Exeter.