Summary Process in Judicial review

Page 383: Is the three-month time limit on claims for judicial review compatible with the right to a fair hearing in Article 6 of the Convention?

• Consider the fact that: ‘the right of access constitutes an element which is inherent in the right stated by Article 6…’(Golder v UK (1979-80),European Court of Human Rights, Application no. 4451/70 1 EHRR 524 [36], emphasis added).  Might an applicant argue that, where the subject-matter of the time-barred judicial review application is a determination of his civil rights and obligations, the three-month time limit denies him effective access to a court?
• Consider Airey v Ireland (1979-80) Application no. 6289/73 2 EHRR 305, in which the Strasbourg Court elaborated that the right of access must be effective and not merely theoretical [24]:’the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective…This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial’.
• However, could it also be argued that the right of effective access to court is not absolute, and must be subject to limitations in the public interest? Consider Ashingdane v UK (1985) Application no. 8225/78 7 EHRR 528, where the European Court of Human Rights accepted that limitations may exist [57].  Is the three-month time limit for judicial review one of these necessary limitations on the right of access?
• But then again, the Strasbourg Court in Ashingdane v UK said the limitations must pursue a legitimate aim, be proportionate to the aim and not be such ‘that the very essence of the right is impaired’ [57].  Might a time-barred applicant for judicial review argue that the three-month time limit impairs the very essence of the right? Is this argument likely to succeed, given the imperatives that exist in some circumstances for speedy resolution of challenges to the legality of public body conduct?  Do not forget that ‘(t)he Contracting States properly enjoy a margin of appreciation in deciding how the right of access to court should be circumscribed’ (Application no. 22083/93; 22095/93  Stubbings v UK (1997) 23 EHRR 213 [55]).
• Consider also that short limitation periods for challenging the legality of government conduct are not a British peculiarity, but exist in other states who are parties to the ECHR e.g. two month time-limit on applications to the French administrative courts (with no discretion to waive the time limit).
• In Stubbings v UK, the Strasbourg court recognized the widespread use of and justifications for limitation periods in civil claims concerning personal injury [51].  Could these arguments apply equally, or perhaps even with greater force, to claims for judicial review of the legality of governmental conduct?

Contempt of court by public authorities

Page 396: Would it have been justifiable for the Court to hold the Home Secretary in contempt in the YA case, on the basis of M v Home Office?

• Suppose the Home Office had failed to do what the Court ordered it to do through incompetence, or underfunding, or someone’s innocent mistake. Should those failings count as contempt?
• Should contempt of court be used only when the court has evidence that the defendant had an adverse attitude to the role of the court, apart from the fact that the defendant did not do what the court ordered?