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26 June 2019

Article 6 ECHR in the age of austerity

The recent case of R (Siddiqui) v Lord Chancellor and Ors [2019] EWCA Civ 1040 contains an interesting analysis of the limits to the protection provided by Article 6 ECHR in the context of judicial review. The case involved an application for permission to appeal against Cutts J’s decision on 19 February 2019 to refuse permission to apply for judicial review. Cutts J on that occasion had heard from counsel for both parties respectively: and, in accordance with the usual practice in judicial review, the matter had been considered previously on the papers, by Dingemans J, who refused permission on 17 January 2019.

The focus for Sir Timothy Lloyd in the Court of Appeal was Rule 52.5 of the Civil Procedure Rules, as amended in 2016. Before that amendment, it had long been the position – except in cases stated to be totally without merit – that a party refused permission to appeal on the papers by a judge of the Court of Appeal was entitled to renew that application at an oral hearing.

In its amended form, Rule 52.5 provides that the Court of Appeal will determine all such applications on the papers alone, subject to (i) a power in the judge considering the papers to direct that there should be an oral hearing and (ii) a requirement that such a direction is made where the judge is of the opinion that an oral hearing is necessary to determine the case fairly. In short, an applicant in the Court of Appeal refused permission on the papers, no longer has a right to an oral hearing.

Mr Siddiqui claimed this position was unlawful for breach of Article 6 of the ECHR, and for breach of the common law principle of ensuring access to justice. He accepted that Article 6 did not always require an oral hearing of an application for permission to appeal, but relied on the consultation process, which preceded the amendment of Rule 52.5, to argue such a hearing was required in the circumstances of his case.

The driver for the amendment of Rule 52.5 was a 54% increase in the Court of Appeal’s workload in a six year period, with a steep and continual rise in the last two years of that period in the proportion of cases not heard by the target ‘hear by’ date. This led to Court of Appeal judges being diverted away from full appeals to determine applications for permission, which in turn saw a doubling in the waiting time for appeals. Without any prospect of an increase in the number of judges to do this work, it was concluded that the amendment of Rule 52.5 described above was necessary: and this despite the significant criticism that the proposal attracted – including from the judiciary – while it was the subject of consultation.

Ultimately, the Court was unpersuaded by Mr Siddiqui’s arguments. In particular, Sir Timothy Lloyd observed that, given the constraints on the number of judges, a balance had to be struck between the need to modify the procedure for permission to appeal and the need to reduce as far as possible the delays in hearing and determining appeals – where such delays themselves inevitably caused injustice. He said this was ‘a paradigm case for the exercise of an executive decision within the range of the margin of appreciation as to how to ensure a proper, fair, just and efficient system for the administration of justice in civil appeals’.

He also described the matter before him as being ‘miles away’ from those cases (such as R (Unison) v Lord Chancellor [2017] UKSC 51) in which a change of procedure was found to have infringed the common law right of access to justice. Mr Siddiqui had, for example, an oral hearing at first instance. In seeking to judicially review that first instance decision, permission had been considered on the papers; then there had been an oral hearing; and finally a right to apply for permission to appeal.

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