On 18 March 2021, the Independent Review of Administrative Law (the IRAL), led by Lord Faulks QC, published its report on reforming judicial review (the Report). At the same time, the Government published a consultation on judicial review reforms, ostensibly on the basis of the Report.
The Report’s conclusions align with the majority of the evidence provided to it (including by Freshfields): that judicial review in its current form strikes a sufficient balance between executive power and citizens’ rights, and any changes to the status quo should be gradual.
We consider robust judicial review as essential to upholding the rule of law, protecting individual freedoms and promoting commercial certainty.
IRAL Recommendations supported by the Government
The intention of the IRAL’s review was to ‘examine trends in judicial review of executive action, in particular in relation to policies and decision making of the Government’. In this light, the Report sets out several recommendations.
Substantive law reform
The IRAL made two key recommendations for substantive change, both of which the Government supports:
- Reversing the Supreme Court’s 2011 decision in Cart – this would prevent Upper Tribunal decisions on permission to appeal from the First Tier Tribunal being subject to judicial review on the basis of an error in law. The Report concluded that such a small proportion of Cart judicial reviews were successful that the judicial resources spent considering these applications could not be justified.
- Introducing a suspended quashing order – this would allow the court to award a quashing order which would automatically take effect after a period of time, if specified conditions were not met. One possible condition could be the court mandating, in general terms, what legislation would have to say for Parliament to ratify an exercise of public power after a successful application for judicial review, thereby respecting Parliamentary sovereignty.
The Report recommends against the introduction of far-reaching legislative reform altering the current law on non-justiciability or generally restricting the powers of the court in relation to judicial review. Strikingly, the Report concludes that ‘the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action.’
A number of additional procedural reforms were suggested in the Report, which the Government intends to take up with the Civil Procedure Rules Committee:
- removal of the requirement to bring a judicial review application ‘promptly’, and instead only having a hard deadline of three months; and
- introducing a formal provision mandating a Reply to be filed by a Claimant.
Third party interventions
The Report recommended that criteria for permitting intervention from third parties should be developed and published, noting an increase in the number of interveners since 2000, and questioning whether this is justifiable, particularly when used as a lobbying tactic which risks the integrity of the adjudicative process. Whilst the Government has not taken this recommendation forward in its consultation, it does acknowledge the argument has merit, and therefore will consider it separately. Further consultation can therefore be expected on this issue. Third parties, in the form of charities and NGOs with specific expertise, can assist the court and add substantial value to litigation by highlighting arguments which are of wider importance than those of the parties. In our experience, English courts already have available (and are in fact exercising) powers to manage interventions appropriately, including refusing permission or directing joint interventions or interventions limited to brief written submissions.
The Government’s desire to ‘go further’ than the IRAL
In addition to the recommendations set out above, the Government has expressed an interest in exploring other proposals in its consultation, building on those outlined in the Report.
- Ouster clauses: the consultation asks how an ouster clause, that is a legislative clause which has the intention of excluding judicial review, can be made effective, given recent case law demonstrating, in the Government’s view, that ‘the courts have not been reluctant to use some stretching logic and hypothetical scenarios to replace or eliminate the effect of ouster clauses’.
- Discretionary remedies with prospective, and not retrospective, effect: the effect of which would be that a decision deeming a legislative provision as unlawful would render invalid only its future, rather than its past use, thereby – the Government says – increasing certainty in relation to government action. Consultation responses will need to consider carefully the balance between such certainty and the injustice this may cause to applicants who have already suffered loss as a result of an unlawful exercise of executive power. This is particularly important in light of the continued expansion of executive power and concomitant growth in the volume and scope of secondary legislation.
- Legislating to codify the principles used by the courts to declare decisions null and void, i.e. as if they never took place: the Government considers whether the starting point should be a presumption against the use of nullity, and then only where the executive action lacks competence, power or jurisdiction should the decision be null and void. The Government is also consulting on whether to legislate on the issues that can be considered as being outside the scope of executive power and can therefore lead to a finding of nullity.
Consultation responses are due in by 29 April 2021. We will be drawing on our experience of judicial reviews and interventions – both for commercial and pro bono clients – to respond.
The Government’s consultation is available here.