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Welsh judicial reviews must be issued and heard in Wales: a guide to the new regime. By David Gardner
The Administrative Court in Wales has now entered the third iteration of its existence. Phase one and the birth of the Administrative Court came in 1999 with the devolution settlement. Phase two began in 2009 with the establishment of the Administrative Court and the Administrative Court Office, both based in Cardiff. Phase three began on 1 October 2020 as a result of key changes governing where Welsh judicial review claims (as well as all other Welsh Administrative Court cases) must be issued and heard.
These are set out in the Civil Procedure (Amendment No. 3) Rules 2020 which amend Part 7 of the Civil Procedure Rules 1998 in provisions 7.1A-7.1B.Further, amendment is made to relevant practice directions by way of 122nd Update to the Practice Directions supplementing the Civil Procedure Rules 1998, in particular CPR PD 54D which sets out the considerations as to which of the Administrative Court Offices – Birmingham, Cardiff, Leeds, London, or Manchester – a judicial review claim should be filed.
As a result, all Administrative Court claims, including judicial reviews, which challenge the decision of a Welsh Public body must now be issued and heard in Wales. If they are not, they will automatically be transferred. Judicial review practitioners should take note.
The change will no doubt be welcomed by many who practise in Wales who have, for some time, recognised that the divergence between legislation made by the Senedd Cymru (Welsh Parliament) and the UK Parliament suggested that expert consideration of Welsh issues should take place in Wales. Furthermore, in the author’s view, the changes give weight to the constitutional principles behind the devolution settlement, ensuring judicial checks against a devolved legislative and executive take place in Wales. If greater autonomy for Wales is the aim then a decentralised system of checks and balances will assist in meeting that goal. Indeed, the constitutional benefits and the advantages in terms of good public administration, including access to justice, have been widely noted.
Case law has long supported a presumption that cases against Welsh public bodies should be heard in Wales. For example, in R (Deepdock) v The Welsh Ministers [2007] EWHC 3347 (Admin) at para 20, HHJ Hickinbottom (sitting as a Judge of the High Court) held: ‘The devolution settlement as a matter of principle transfers political accountability to the organs of devolved government in Wales; and, where a decision of such a body is challenged, the devolved administration is directly accountable through the Courts. The location of the relevant arm of government is in any event a factor that must be taken into account in considering the appropriate venue for proceedings ... [W]ith the increased impetus given to devolved government by the Government of Wales Act 2006 and with increasing powers actually being devolved to the National Assembly for Wales, there is in my view a deepening imperative that challenges to any devolved decisions are (like the decisions themselves) dealt with in Wales ... [S]uch cases should be heard in Wales unless there are good reasons for their being heard elsewhere.’
However, until the change on 1 October 2020, CPR PD 54D did not make issuing and hearing of Welsh claims in Wales mandatory. The deepening imperative recognised in the judicial guidance is now given effect by the move to a mandatory requirement under the amended CPR.
Indeed, while slow to come to fruition, the change was perhaps inevitable. Cases that directly affect the devolved institutions and/or that involve uniquely Welsh matters must be best considered in Wales. For example, R (Brynmawr Foundation School Governors) v The Welsh Ministers [2011] EWHC 519 (Admin) in which the Administrative Court in Wales was required to determine the extent to which the Welsh government could delegate its powers to Welsh local authorities, was issued, managed and determined in Wales.
Further, the case of R (Aron Wyn Jones) v Denbighshire County Council [2016] EWHC 2074 (Admin), a case heard in Welsh that determined the lawfulness of the closure of a Welsh medium school and replacement by a bilingual school, was also issued, managed and determined in Wales. Indeed, the recent case of R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) in which, amongst other matters, the court was required to consider interpretation of bilingual legislation, was issued, managed and determined in Wales (albeit remotely by Skype).
The suggestion that such uniquely Welsh matters may not have been heard in Wales does not sit comfortably with either the principle of access to justice or the constitutional backdrop. This said, the case of R (Sargeant) v The First Minister of Wales [2019] EWHC 739 (Admin), in which a challenge was brought in relation to the establishment of the ‘Independent Investigation into the First Minister’s Actions and Decisions in relation to Carl Sargeant’s Departure from his post as Cabinet Secretary for Communities and Children and thereafter’ was issued and permission to apply for judicial review was considered in London, only being transferred to Wales for the final substantive hearing. It is of concern that an issue that is of such deep interest and importance to the people of Wales and the internal workings of Welsh government, if permission had been refused, would have been entirely considered in England. This concern, from 1 October 2020, has been alleviated.
The change of position of the Civil Procedure Rules Committee is no doubt in large part due to the recommendations of the Commission on Justice in Wales, chaired by the former Lord Chief Justice, Lord Thomas of Cwmgiedd. The Commission recommended amendment of CPR PD 54D to make it compulsory that Welsh administrative law cases be issued and heard in the Administrative Court in Wales. (See recommendation 24 of the Commission on Justice in Wales Report, Justice in Wales for the People of Wales, October 2019.) The conclusions of the Commission no doubt expeditiously found their way before the Civil Procedure Rules Committee as a result of HHJ Jarman QC, Judge of the Administrative Court in Wales, being a member of the Committee.
There are still some questions to be answered as to how this new phase of the Administrative Court in Wales will operate in practice. For example, the newly implemented provisions do not define a ‘Welsh Public Body’ within the Civil Procedure Rules 1998. The author has acted in judicial review claims in Wales involving Welsh local authorities and the Welsh government. Clearly, under any definition, these will be Welsh public bodies. Less clear, however, is the extent to which claims such as those against bodies which may be considered to be cross-border, such as National Savings and Investments, would fall within the definition (see R (on the application of Welsh Language Commissioner) v National Savings and Investments [2014] EWHC 488 for an example of a uniquely Welsh case involving NS&I). It may be that the definition as set out in s 157A and Sch 9A of the Government of Wales Act 2006 will be adopted. This remains to be considered. Nonetheless, the newly implemented changes would appear to represent a step in the right direction for an Administrative Court for (and not just in) Wales.
A version of this article was first published on the No.5 Barristers Chambers and Legal News Wales websites.
David Gardner is a public law barrister at No.5 Barristers Chambers. From 2009-2017 he was the Administrative Court Office Lawyer for Wales and the West. He is the author of Administrative Law and the Administrative Court in Wales (University of Wales Press: 2016) and ‘Administrative Law and the Administrative Court for – or in – Wales’ in TT Arvind et al (ed) Executive Decision-Making and the Courts (Bloomsbury: 2021).
The Administrative Court in Wales has now entered the third iteration of its existence. Phase one and the birth of the Administrative Court came in 1999 with the devolution settlement. Phase two began in 2009 with the establishment of the Administrative Court and the Administrative Court Office, both based in Cardiff. Phase three began on 1 October 2020 as a result of key changes governing where Welsh judicial review claims (as well as all other Welsh Administrative Court cases) must be issued and heard.
These are set out in the Civil Procedure (Amendment No. 3) Rules 2020 which amend Part 7 of the Civil Procedure Rules 1998 in provisions 7.1A-7.1B.Further, amendment is made to relevant practice directions by way of 122nd Update to the Practice Directions supplementing the Civil Procedure Rules 1998, in particular CPR PD 54D which sets out the considerations as to which of the Administrative Court Offices – Birmingham, Cardiff, Leeds, London, or Manchester – a judicial review claim should be filed.
As a result, all Administrative Court claims, including judicial reviews, which challenge the decision of a Welsh Public body must now be issued and heard in Wales. If they are not, they will automatically be transferred. Judicial review practitioners should take note.
The change will no doubt be welcomed by many who practise in Wales who have, for some time, recognised that the divergence between legislation made by the Senedd Cymru (Welsh Parliament) and the UK Parliament suggested that expert consideration of Welsh issues should take place in Wales. Furthermore, in the author’s view, the changes give weight to the constitutional principles behind the devolution settlement, ensuring judicial checks against a devolved legislative and executive take place in Wales. If greater autonomy for Wales is the aim then a decentralised system of checks and balances will assist in meeting that goal. Indeed, the constitutional benefits and the advantages in terms of good public administration, including access to justice, have been widely noted.
Case law has long supported a presumption that cases against Welsh public bodies should be heard in Wales. For example, in R (Deepdock) v The Welsh Ministers [2007] EWHC 3347 (Admin) at para 20, HHJ Hickinbottom (sitting as a Judge of the High Court) held: ‘The devolution settlement as a matter of principle transfers political accountability to the organs of devolved government in Wales; and, where a decision of such a body is challenged, the devolved administration is directly accountable through the Courts. The location of the relevant arm of government is in any event a factor that must be taken into account in considering the appropriate venue for proceedings ... [W]ith the increased impetus given to devolved government by the Government of Wales Act 2006 and with increasing powers actually being devolved to the National Assembly for Wales, there is in my view a deepening imperative that challenges to any devolved decisions are (like the decisions themselves) dealt with in Wales ... [S]uch cases should be heard in Wales unless there are good reasons for their being heard elsewhere.’
However, until the change on 1 October 2020, CPR PD 54D did not make issuing and hearing of Welsh claims in Wales mandatory. The deepening imperative recognised in the judicial guidance is now given effect by the move to a mandatory requirement under the amended CPR.
Indeed, while slow to come to fruition, the change was perhaps inevitable. Cases that directly affect the devolved institutions and/or that involve uniquely Welsh matters must be best considered in Wales. For example, R (Brynmawr Foundation School Governors) v The Welsh Ministers [2011] EWHC 519 (Admin) in which the Administrative Court in Wales was required to determine the extent to which the Welsh government could delegate its powers to Welsh local authorities, was issued, managed and determined in Wales.
Further, the case of R (Aron Wyn Jones) v Denbighshire County Council [2016] EWHC 2074 (Admin), a case heard in Welsh that determined the lawfulness of the closure of a Welsh medium school and replacement by a bilingual school, was also issued, managed and determined in Wales. Indeed, the recent case of R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) in which, amongst other matters, the court was required to consider interpretation of bilingual legislation, was issued, managed and determined in Wales (albeit remotely by Skype).
The suggestion that such uniquely Welsh matters may not have been heard in Wales does not sit comfortably with either the principle of access to justice or the constitutional backdrop. This said, the case of R (Sargeant) v The First Minister of Wales [2019] EWHC 739 (Admin), in which a challenge was brought in relation to the establishment of the ‘Independent Investigation into the First Minister’s Actions and Decisions in relation to Carl Sargeant’s Departure from his post as Cabinet Secretary for Communities and Children and thereafter’ was issued and permission to apply for judicial review was considered in London, only being transferred to Wales for the final substantive hearing. It is of concern that an issue that is of such deep interest and importance to the people of Wales and the internal workings of Welsh government, if permission had been refused, would have been entirely considered in England. This concern, from 1 October 2020, has been alleviated.
The change of position of the Civil Procedure Rules Committee is no doubt in large part due to the recommendations of the Commission on Justice in Wales, chaired by the former Lord Chief Justice, Lord Thomas of Cwmgiedd. The Commission recommended amendment of CPR PD 54D to make it compulsory that Welsh administrative law cases be issued and heard in the Administrative Court in Wales. (See recommendation 24 of the Commission on Justice in Wales Report, Justice in Wales for the People of Wales, October 2019.) The conclusions of the Commission no doubt expeditiously found their way before the Civil Procedure Rules Committee as a result of HHJ Jarman QC, Judge of the Administrative Court in Wales, being a member of the Committee.
There are still some questions to be answered as to how this new phase of the Administrative Court in Wales will operate in practice. For example, the newly implemented provisions do not define a ‘Welsh Public Body’ within the Civil Procedure Rules 1998. The author has acted in judicial review claims in Wales involving Welsh local authorities and the Welsh government. Clearly, under any definition, these will be Welsh public bodies. Less clear, however, is the extent to which claims such as those against bodies which may be considered to be cross-border, such as National Savings and Investments, would fall within the definition (see R (on the application of Welsh Language Commissioner) v National Savings and Investments [2014] EWHC 488 for an example of a uniquely Welsh case involving NS&I). It may be that the definition as set out in s 157A and Sch 9A of the Government of Wales Act 2006 will be adopted. This remains to be considered. Nonetheless, the newly implemented changes would appear to represent a step in the right direction for an Administrative Court for (and not just in) Wales.
A version of this article was first published on the No.5 Barristers Chambers and Legal News Wales websites.
Welsh judicial reviews must be issued and heard in Wales: a guide to the new regime. By David Gardner
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