Last year the Government set up an independent review of administrative law (IRAL) – the law that governs the actions and decisions of public bodies.
IRAL was tasked with considering whether changes were needed to judicial review. Its findings and recommendations were published on 18 March. The Government responded by launching a further consultation, seeking the public’s views on a series of more radical proposals for reform. That consultation closes on 29 April.
This Insight explains the background to IRAL, what it recommended, and why the Government is consulting again.
What is judicial review?
The High Court of England and Wales and the Court of Session in Scotland have a supervisory jurisdiction over the administrative decisions of ‘public bodies’ (including ministers, local authorities and others exercising public functions). Public bodies must exercise their powers fairly, reasonably, in good faith, for the purpose for which the powers were conferred, and within the limits of those powers.
The courts enforce this through the process of judicial review. Judicial review claims ask the courts to look at the lawfulness of an enactment, or a decision, action or failure to act in relation to the exercise of a public function. Judges hearing claims for judicial review are not putting themselves in the position of the public body that took the original decision, weighing up the merits of competing courses of action.
A claim for judicial review is also the mechanism used to challenge alleged breaches of human rights by public authorities.
Why was a review set up?
There has been an ongoing debate as to whether judges, enabled in part by the Human Rights Act, have expanded their reach into what some consider to be inherently political areas of decision making.
The 2019 Conservative manifesto promised to set up a Constitution, Democracy and Rights Commission to look at “the relationship between the Government, Parliament and the courts.”
It pledged to update the Human Rights Act and administrative law to ensure “there is a proper balance between the rights of individuals, our vital national security and effective government.” It sought to: “ensure that judicial review is available to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”
The Government announced the establishment of IRAL in July 2020 as part of its plans “to ensure the right balance is struck between citizen’s rights and effective governance.”
Chaired by former Justice Minister Lord Faulks QC, the review was conducted by a panel of legal experts. It took evidence from government departments and the public during the autumn.
What did IRAL look at?
The review’s terms of reference included looking at whether:
- the grounds for bringing judicial reviews should be codified in statute;
- the types of decision that can be judicially reviewed should be restricted;
- changes should be made to the availability of remedies in judicial review;
- procedural rule changes are needed, for example to time limits or to who can bring a judicial review (called the ‘rules on standing’).
What did the panel recommend?
On several of the issues IRAL was asked to consider, it recommended no, or very little change. IRAL did not support, for instance, the codification of judicial review, and it opposed any move further to restrict the rules on standing or further tightening time limits for doing so.
This provided some re-assurance to sceptics of IRAL. As IRAL’s report readily admitted, academics and practitioners had questioned both the breadth of its remit and the amount of time it had been given to carry out its work.
IRAL made three core policy recommendations.
Firstly, it said Parliament should legislate to reverse the decision in Cart. That UK Supreme Court judgment established that, in limited circumstances, decisions of the Upper Tribunal could be judicially reviewed by the High Court of England and Wales. The panel concluded this type of case had a disproportionate impact on judicial resources with extremely low prospects of success and should therefore be discontinued. It identified a “success rate” of 0.22% for these reviews since 2012, but the validity of this figure has been questioned by some academics and practitioners.
Secondly, IRAL concluded that “suspended” quashing orders should be recognised in statute as being available, reversing the conclusions of another Supreme Court decision in Ahmed (No. 2). Under this reform, courts could choose to give public bodies a time-limited opportunity to remedy an unlawful act instead of immediately striking it down. At the moment, courts typically do not have discretion: they must treat any unlawful act as though it had never been validly taken in the first place (i.e. as a “nullity”). This new flexibility would be particularly useful in “constitutional cases”: courts could empower Parliament to resolve disputes about the use of executive powers.
Thirdly, it recommended the Civil Procedure Rules should no longer require that a judicial review is made “promptly”, but that the existing three-month time limit should be retained.
Why is the Government holding a further consultation?
The Government has launched a public consultation in response to IRAL with essentially two purposes.
Firstly, it wants to consult on how best to implement IRAL’s core recommendations. Secondly, the Government wants to consult on taking further, more radical, steps that IRAL did not advocate or endorse. Among other things, it is considering legislating:
- to clarify the effect of ouster clauses (statutory provisions that purport severely to restrict or entirely to exclude judicial review of a decision);
- to enable some remedies to have only prospective effect;
- to restrict some challenges of secondary legislation, so that they have only prospective effect; and
- about the principles governing the “nullity” of decisions.
On ouster clauses especially, the panel appeared sceptical of major reform. Although it acknowledged that Parliament might reasonably legislate to reverse the courts’ treatment of justiciability in specific cases, it advised against “broader” approaches and reiterated that there should be “strong presumption in favour of leaving questions of justiciability to the judges.”
- The Independent Review of Administrative Law, CP 407, March 2021
- Judicial Review Reform Consultation, Ministry of Justice, March 2021
- Collection of responses to the Independent Review of Administrative Law, The UK Administrative Justice Institute, November 2020
- JR Reform: Buckland to ‘go further’ than Faulks review, Monidipa Fouzder, Law Gazette, March 2021
- Society raises concern over JR proposal on ouster clauses, Monidipa Fouzder, Law Gazette, March 2021
- Buckland’s Judicial Power Project, Eduardo Reyes, Law Gazette, March 2021
- Judicial reviews must not be blunted in the name of politics, Jonathan Jones, The Times, March 2021
- Faulks defends judicial review, Joshua Rozenberg, A Lawyer Writes, March 2021
- The Panel Report, Paul Craig, Oxford Human Rights Hub, March 2021
- The Government Response, Paul Craig, Oxford Human Rights Hub, March 2021
- The Government Response and Consultation Exercise, Paul Craig, Oxford Human Rights Hub, March 2021
- Putting the Cart before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews, Joe Tomlinson and Alison Pickup, UK Constitutional Law Association, March 2021
About the authors: Joanna Dawson is a researcher specialising in civil procedure and judicial review and Graeme Cowie is a researcher specialising in constitutional law at the House of Commons Library.