Thread by @SimonFRCox

The Administrative Court User Guide Is Not Law

Short thread on the risk of subversion of the Rules-based order in the field of JR.

A few years back, the judges who sit in England & Wales Administrative Court decided it would be helpful if there were an Administrative Court User Guide. Here's the current version: assets.publishing.service.gov.uk/government/upl…

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The Administrative Court User Guide is *A Good Thing* It explains in narrative form much about how the Admin Court works, bringing together references to the Rules, Practice Directions and caselaw. The President of the QBD is right to 'encourage the study of it' (Foreword) +

But the ACUG is not the law. It may be written by and signed off by some judges, but the Administrative Court is governed by the Civil Procedure Rules. justice.gov.uk/courts/procedu…

The CPRs are not made by judges.

The CPRs are made by the Civil Procedure Rules Committee. This includes not only judges, but lawyers and (gasp) non-lawyers. gov.uk/government/org…

This is also A Good Thing.

The Civil Procedure Rules Committee is bound by law to consult on significant changes to the CPRs. And the CPRs take precedence over Practice Directions.

The ACUG is none of these things. It has no *legal* authority of its own.

So it's worrying when judges talk about the ACUG *almost as if it were the law and the rules*. In this week's DVP judgement bailii.org/ew/cases/EWHC/… the QBD President says it "sets out the practice" and - instead of referring to law - uses the ACUG as her starting point +

The ACUG can be a convenient tool for finding out the law. And where there is no law, it's useful to cite as evidence of *judicial* practice (I do). But to cite it as if it were the origin of the duties of *parties* seems to me going too far +

Doing so runs the risk that the authors of the ACUG will become the rule makers, when that is constitutionally the function of the CPRC.

It gets worse if the ACUG authors go beyond describing the rules and practice and create requirements that are not in the Rules. +

Illustration: ACUG asserts that grounds for renewing a JR permission application *must* "explain the asserted error in the refusing judge’s reasons" (8.4.5). But: that isn't a CPR requirement, renewal is not an appeal & the case cited for this claim is under different rules +

So, for any Admin Court judges who have got this far - the ACUG is a Good Thing, but please can it be just a Guide to the law and Rules and not stray into acting (or be talked about as if it were) the law and Rules itself? //