LSA Continues to Fight Judicial Review Time Limit

On 25th March 2014 Paul Brown gave evidence to the Justice Committee on the Court Reform (Scotland) Bill. Last month the Committee published its Stage 1 Report on the Bill, evaluating the evidence provided by all interested parties. This month the Bill completed Stage 2 and now awaits Stage 3 where it faces a final debate in Parliament.

The Bill seeks to implement recommendations outlined in the Report of the Scottish Civil Courts Review (2009), where Lord Gill criticised the court system for being “slow, inefficient and expensive” and recommended that “the court system has to be reformed both structurally and functionally”.

Whilst most provisions received our broad support, you may remember we strongly disputed one central aspect of the Bill – a proposal to limit the application for Judicial Review to three months. Judicial Review is a procedure by which a court can review an administrative action by a public body. It’s a way of supervising public bodies to make sure they’re acting within their legal powers and that they have proper procedures in place to deal with people fairly and openly. LSA often makes or threatens judicial review applications in cases where homeless rights are at issue, or to dispute local authority community-care decisions.

We argued that the proposed time limit has no real pressing policy justification, being unnecessarily pro-Government and anti- applicant and far too restrictive to allow for time to manage an application (especially for smaller community groups). This view has been supported by the Scottish Association of Law Centres and Glasgow Advice Service Campaign Working Party. Paul argued to the Committee “the AXA case opened the door for Judicial Review but the three month deadline, in the context of our court procedure and lack of tradition for judicial review, closes it again.”

Giving evidence, many others outlined similar concerns. Jonathan Mitchell QC neatly compared public authorities’ avocation of a three month time limit for judicial review to a prisoner in Barlinnie arguing for a three month time limit on prosecution for crime. Tony Kelly of Justice Scotland pointed out that only 20% of respondents to the Gill review supported the introduction of the limit. Other organisations demonstrating concerns included the Law Society of Scotland, Friends of the Earth Scotland, Scottish Environment LINK, and Shelter Scotland.

Reviewing the evidence, the Justice Committee in their Stage One Report recognised that many opposed the deadline. However, it is presented as though there was a general balance of opinion on the matter – “A range of views were expressed to the Committee about time limits for judicial review, with some organisations supporting the three month limit and others opposing it”. This is misleading. Of those that expressed a view on the idea of a time limit it their written submissions, only four (including Asda who actually advocated an even tighter 6 week limit) voiced their support for the provision. 14 others, however, opposed it, and at the very least argued for an extension to 6 months.

Apparently ignoring these concerns, the Committee supported keeping Section 85, recommending that subsection (1(b) – which allows for judicial review in such a longer period as the “court considers equitable” – be applied with “flexibility”. In doing so, they appear to give great weight to the view of the Lord President, who in oral evidence, stated that subsection (1)(b) could cover a “wide range of circumstances” and therefore was a sufficient safeguard. Whilst we believe it is certainly necessary to have such a provision to avoid injustice in specific cases if a limit is to be introduced, we strongly believe the existence of such a provision also creates uncertainty for litigants. A longer time limit would reduce the number of cases in which the court had to exercise this discretion, and this would be preferable.

In any case, is very risky to presume such a provision will be applied with “flexibility”. The Bill does not specify the grounds that might be permitted for late actions. In general however, ignorance of the law or delay in obtaining advice (unless caused by an illness) is not regarded as an excuse for raising an action, meaning many meritous cases could still be thrown out.

Although its was later rejected, we were encouraged when Justice Committee member Alison McInnes MSP lodged an amendment at Stage 2 which would have had the effect of removing Section 85, therefore eradicating completely provisions for the time limit. She reflected the concerns of those opposing the bill, telling her fellow committee members: “There is concern that the three months is insufficient time to assemble a case and secure funding, and that is particularly true for community groups, which, given the need to meet, understand their options and agree a course of action, will likely need longer to marshal their case. It would also present real challenges to those who require legal aid or who have to find a solicitor willing to act pro bono”.

We wrote to Alison McInnes, expressing our support for her endeavours and encouraging making similar amendments again at Stage Three. She replied saying that she is likely to lodge further amendments, but this time with aim to extend the limit rather than remove the section entirely. We are delighted that there may still be a possibility that the legislation could be changed and have informed Alison McInnes that should she make such an amendment, we plan to write to all MSPs on behalf of various organisations encouraging them to support her proposals.

We have been informed that Stage Three is likely to be held in the middle of August (although this is yet to be confirmed) and Alison McInnes has promised to notify us when Stage 3 amendments have been tabled – stay tuned!


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