The Regionalisation of Judicial Review: Constitutional Authority, Access to Justice and Specialisation of Legal Services in Public Law

DOIhttp://doi.org/10.1111/1468-2230.12011
Published date01 March 2013
Date01 March 2013
The Regionalisation of Judicial Review: Constitutional
Authority, Access to Justice and Specialisation of Legal
Services in Public Law
Sarah Nason and Maurice Sunkin*
Since April 2009 judicial reviews may be dealt with at regional centres and in Cardiff. This change
significantly relaxed the hitherto highly centralised system of judicial review in England and
Wales. The main aims were to improve access to public law redress by enabling cases to be listed
and heard at the most appropriate regional location. Despite recognition of the need to improve
regional access, fears exist that this reform will threaten the standing and authority of judicial
review in this jurisdiction; that it will contribute to a fragmentation of judicial review and, in the
regions, reduce the quality of public law adjudication, legal advice and representation. Drawing
on an empirical study on the regional use of judicial review, this paper assesses these matters and
considers the early effects of regionalisation on access to judicial review and the development of
regional markets for legal services in public law.
INTRODUCTION
In April 2009 four regional Administrative Court Centres were established in
Birmingham, Cardiff, Leeds and Manchester to deal with judicial review claims
and other aspects of the Administrative Court’s jurisdiction.1Although Welsh
cases had previously been dealt with in Cardiff and small numbers of judicial
reviews had been heard on Circuit, prior to regionalisation judicial review was
an essentially centralised system based in the High Court in London.2The most
important aim of this essentially administrative reform is to improve access to
justice by ensuring that public law claims are issued and heard at the most
*Respectively, Ysgol y Gyfraith/School of Law, Prifysgol Bangor University and School of Law,
University of Essex, Associate Member Landmark Chambers. Particular thanks are due to Duncan
Hardy, research assistant to the project, and to Varda Bondy of the Public Law Project. The authors
would also like to thank Professor Lucinda Platt, Clive Lewis QC, Yseult Marique, the anonymous
reviewers and the High Court and Administrative Court Managers and lawyers without whom this
research would not have been possible. We also acknowledge the generous support of the Nuffield
Foundation and British Academy who funded the project. We remain responsible for errors.
1 A fifth centre was opened in Bristol in November 2012 and the Administrative Court will also
sit regularly there, however these cases are administered from the Cardiff Centre. This paper
does not specifically address matters relating to Bristol and the south west of England. In this
paper we refer to the regionalisation of the Administrative Court, although there is a strong case
for treating the establishment of the Centre in Cardiff as a stage in the formation of a distinct
jurisdiction in Wales, see D. Gardner, ‘Public Law Challenges in Wales: The Past and the
Present’ [2013] PL 1.
2 Regionalisation establishes new access points to the High Court’s supervisory jurisdiction rather
than a new local jurisdiction. In this sense, it is not exactly equivalent to, say, the creation of local
small claim courts. Nor is regionalisation comparable to establishing informal ‘neighborhood
justice’, R. L. Abel (ed), The Politics of Informal Justice vol 1 (New York: Academic Press, 1982) 276.
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 223–253
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
appropriate location.3This should enable matters to be handled ‘closer to home’
thereby reducing inconvenience, saving costs and potentially relieving pressure
on the Administrative Court in London. As well as encouraging improvements
in the availability of specialised legal services, regionalisation may also allow
people better access to court proceedings which are of local interest, even when
they are not parties.4These aims resonate with approaches to judicial review that
stress its role in providing redress and serving the legal needs of communities.5
This is a bottom up vision that differs significantly to the centralist top down
approach endorsed by the House of Lords in O’Reilly vMackman6(O’Reilly).
Despite its possible benefits the prospect of regionalising judicial review was
not universally welcomed, including by leading members of the judiciary7and
the specialist Bar who feared it would reduce the quality of public law adjudi-
cation and lead to a decline in the standing and effectiveness of judicial review.
This article is broadly in two parts. In the first we place regionalisation of
judicial review in context by looking at the principal reasons why regionalisation
matters and why the project has been contentious in some quarters. In the
second we draw on findings of our empirical research to explore whether
regionalisation is opening access to public law, the early effects of the reform on
the scale and types of claims being made and on the provision of legal services in
the regions. We also look at use of the process by litigants in person (LIPs) and
at permission success rates across the regions. Before moving into these sections
of the article, we first briefly outline the research methods used for the empirical
aspects of the work.
THE RESEARCH AND ITS METHODS
The picture we provide of Administrative Court litigation across the regional
Centres and the Royal Courts of Justice (RCJ) in London8is based on our
analysis of applications for judicial review received by the Administrative Court
in the four years from 1 May 2007 and 30 April 2011 inclusive, corresponding
to the two year periods before and after regionalisation.9
3 An aim reinforced in the Practice Direction giving effect to the reforms: Practice Direction 54D –
Administrative Court (Venue).
4 On local democracy see, M. Elliott and S. Bailey, ‘Taking Local Government Seriously:
Democracy, Autonomy and the Constitution’ (2009) CLJ 436.
5 R. Cotterrell, ‘Judicial Review and Legal Theory’ in G. Richardson and H. Genn (eds), Admin-
istrative Law & Government Action (Oxford: Clarendon Press, 1994) 18.
7 Collins J, then lead judge in the Administrative Court is reported to have been a ‘staunch opponent’
of regionalising the Administrative Court, N. Goswami, ‘Tensions on the bench spark Admin
Court shuffle’ 15 December 2008 The Lawyer at http://www.thelawyer.com/tensions-on-the-
bench-spark-admin-court-shuffle/136063.article (last visited 16 November 2012).
8 The Administrative Court regions are based upon Her Majesty’s Courts’ and Tribunals’ Service
(HMCTS) regional boundaries that do not necessarily coincide with other administrative or
demographic factors.
9 We drew on the Administrative Court’s case management system, the Crown Office Information
Network (COINS). Note that our study was concerned with claims rather than final decisions of
the Administrative Court.
The Regionalisation of Judicial Review
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited.
224 (2013) 76(2) MLR 223–253

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