Government launches consultation on Judicial Review reform

On the 18th of March, the Government opened a consultation on proposed measures aimed at reforming Judicial Review. The consultation comes after the publication of the Independent Review of Administrative Law (IRAL), which considered the options for reforming the process of Judicial Review (JR).

The proposal to reform JR has been denounced by some as a cynical attempt by Government to curtail the right of the public to challenge public bodies who break the law. The timing of the review is, perhaps, suspicious when one considers the recent slew of JR’s challenging the Government’s decisions. Challenges such as the article 50 Miller case, the Prime Minister’s decision to prorogue Parliament and legal actions blocking the deportation of foreign offenders, have been cited as reasons why the Government is so eager to reform the JR process.

IRAL: The Faulks Report

Published on 18th March, the UK’s Independent Review of Administrative Law was launched in July 2020 with the independent panel being disbanded in 2021. The report, also known as the Faulks report after the panel’s Chair, Lord Edward Faulks QC, found that significant reforms to JR were not necessary. The report indicates that only moderate changes are appropriate to improve the process. One of the issues under consideration was whether the grounds of public law illegality should be codified in statute. Paragraph 1.43 of the report draws a number of conclusions, namely that JR is “an essential ingredient in the rule of law in the care of an independent judiciary” and “an essential element of access to justice, which is a constitutional right.” It found that whilst “a statutory formulation might add legitimacy to judicial review” and “help to set boundaries to judicial interpretative expansion…on balance, little significant advantage would be obtained by statutory codification, as the grounds for review are well established and accessibly stated in the leading textbooks.” In other words, the report warned against legislating the grounds for JR as these were already well established.

With regards to the legal issues over which the court can exercise judicial authority, the report recommended that “Parliament not pass any comprehensive or far-reaching legislation in this area, but instead legislate in response to particular decisions.” It noted that whilst the panel understood the Government’s concern with regards to “recent court defeats” this was not a reason to legislate more broadly. Furthermore, the panel had a mind to the responses submitted to it, the majority of which were against legislating justiciability. The panel also considered whether it would be appropriate to narrow the grounds for JR, as a means of addressing concerns about judicial overreach. The report referred to concerns that there “are now so many different bases on which governmental action can be challenged, a court which disagrees with the wisdom of that action will easily be able to rely on some ground or another as a ground for setting aside that action.”

The report also addressed the issue of whether JR as it stands, makes it too difficult for public bodies to be able to predict whether or not a course of action will end up being successfully challenged in the court, leading to a risk averse approach being adopted by public bodies. In response to these issues, the report states that the courts themselves have placed limits on the grounds of JR, going on to assert, that “overreach and uncertainty created by the current state of the law on the grounds of judicial review must come from the courts, and the courts should be encouraged to do what they can to address these problems.” In short, the report recommends against any legislative measures being taken to resolve these issues and suggests that the courts themselves are best placed to resolve these matters and should be trusted to do so.

The report did, however, recommend that legislation be introduced overturning the Supreme Court decision in R (Cart v Upper Tribunal), which allowed a decision of the Upper Tribunal to be judicially reviewed where there has been an error of law by a First Tier Tribunal. These JR’s usually relate to immigration cases and data shows that despite a substantial number of Cart JR’s being brought, taking up valuable court time and resources, only 0.22% of all applications result in an error of law on the part of a First Tier Tribunal being corrected. There is, then, arguably a valid basis for the panel’s recommendation in this regard.

Another potential change recommended by the report is the introduction of a power to suspend quashing orders. Such a power would allow courts to suspend a quashing order where a public body carries out steps specified by the court to remedy a breach. The report noted that this power “would not involve any fundamental breach with the principles underlying the common law of judicial review.”
The panel found that whilst the number of JR’s being brought has increased exponentially since the 1970’s, the data shows that the number of claims being brought is at a similar level to that recorded in the mid-1990s. The evidence shows that the number of JR’s being brought is in fact decreasing and that a significant number of claims fell away after being refused permission on the papers. Out of those applications which were granted permission to proceed to JR, a significant number were settled without the need for a substantive hearing. Those cases which did proceed to a substantive hearing were a very small proportion of those originally granted permission to proceed. The report noted that the evidence did not suggest that large numbers of claims lacking merit were being allowed to proceed and indicated that the judicial review pre-action protocol procedure is operating efficiently in weeding out those cases which do not merit JR. The report recommended against legislating on the issue of standing to bring a JR. Instead, it advised that “if the courts’ current broad approach to standing is proving problematic for government bodies, it is always open to defendants in judicial review proceedings to do more to challenge the standing of claimants to bring such proceedings than they perhaps do at the moment.”

Overall, the report made very few recommendations for change. The two main suggestions were that Cart JR’s be overturned and that courts be given the power to suspend quashing orders. All other issues, it suggested, could be managed by the courts themselves or by a more a more effective use of the existing process.

Judicial Review consultation

Given the rather moderate recommendations made in the Faulks report, one would expect the consultation to reflect this approach. This, however, is not the case. Announcing the launch of the consultation, the Lord Chancellor, Robert Buckland QC MP, stated, “We must seize this opportunity to restore a proper balance between the institutions that have been so integral to our success as a nation – to protect the rights of individuals, our vital national security and effective government.” Whilst acknowledging the two recommendations made by the panel, Mr Buckland asserted that “Ministers are determined to build on this important work by consulting on further measures informed by the panel’s analysis.” Amongst those additional measures proposed under the consultation are the enforcement of “ouster clauses” which would allow Parliament to determine areas which are unsuited to legal accountability, effectively limiting the courts’ jurisdiction in these matters, the introduction of prospective-only remedies as well as certain procedural reforms.

The report clearly advised against legislating on certain issues and indicated that the courts themselves are capable of addressing a number of the concerns raised, such as judicial overreach. It noted that the courts have, in fact, been instrumental in limiting the grounds on which a JR can be brought. The report suggested that with the exception of Cart JR’s, the number of JR’s being brought were not excessive, with a significant number being resolved before reaching the substantive hearing stage. The inference is that there are not a lot of problems which need to be fixed and those that do, can be done with minimal change to the existing procedure. The Government’s announcement that it is seeking views on measures which will limit the scope of judicial powers is a cause for concern. These are steps which far exceed those recommended by the independent panel.

It is difficult to see how ouster clauses could be anything other than an attempt to prevent judicial interference in matters which the Government does not wish to invite scrutiny on. Referring to ouster clauses as a means of tailoring the grounds for JR, the report comments:

“even if an ouster clause could be drawn up in terms that were tight enough to be effective at limiting the grounds on which a particular exercise of public power could be reviewed, the practical advantages resulting from the existence of the clause would probably not be sufficient to justify the potential constitutional fallout that enactment of that clause might trigger.”

The Government’s push towards ouster clauses would appear to ignore this warning. In a debate in the House of Commons on 18th March, Mr Buckland stated,

It is self-evidently open to Parliament to delineate the role of the courts in controlling any particular power because, of course, Parliament is sovereign. Parliament can do this by passing an ouster clause—a considered choice that certain subjects are not appropriate for judicial control.
Contrary to Mr Buckland’s claims that the consultation seeks to strike the correct balance between protecting the rights of individuals and proper government, his statement in the House of Commons suggests that arguably the true purpose of the exercise is to wrest power from the judiciary. Ouster clauses are not being introduced because it is the right thing to do, but because Parliament wants to do it. In enforcing ouster clauses, the Government is able to exempt itself and its actions from judicial scrutiny, and in so doing, it undermines the rule of law which provides that all are subject to the law.

The potential introduction of prospective-only remedies also raises questions. In the House of Commons, Mr Buckland stated that such remedies would “limit the retrospective effect of any quashed decision or action.” This is a favourable way of framing the situation. In reality, a prospective-only remedy would potentially mean that a claimant would receive no relief if a public body was found to have acted unlawfully. There may be some instances where a claimant has not been prejudiced as a result of a public body’s error, however, serious consideration would have to be given to the sorts of situations where prospective-only remedies would plainly be insufficient or inappropriate. Without further detail on how these remedies would work, it does look like the Government wishes to ensure that public bodies will be able to escape the consequences of their errors. This does not accord with the picture of a Government seeking to reach a balance which adequately protects the rights of individuals.

JR is often the only way of challenging a regulator’s decision. Where regulators refuse to properly engage with those that they regulate and address legitimate concerns raised with regards to their enforcement decisions, the court plays a fundamental role in scrutinising those actions. The possibility that greater restrictions may be introduced to a route of challenge, where the threshold is already very high, is a blow to those who understand the value of JR. We have acted for numerous clients whose only option for challenging a regulatory decision was through JR. The possibility that further limitations may be placed on this important route of challenge is concerning.

It remains to be seen what the results of the consultation will be. Given that the evidence submitted to the independent panel was largely against introducing great changes to the JR process, it will be interesting to see whether this is reflected in the findings of the consultation. Perhaps the real question is if general opinion is against the proposed measures, will the Government be prepared to listen?

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