Monday, 22 March 2021

Independent Review of Administrative Law (IRAL) ~ Report and government response published

The Independent Review of Administrative Law (IRAL) (previous post) was "established following the Government’s manifesto commitment to guarantee that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays."  Terms of Reference 

The IRAL ran a Call for Evidence from 7 September to 26 October 2020 - Independent Review of Administrative Law - Call for Evidence (PDF, 678KB, 12 pages). Links to the various submissions are available via Ministry of Justice - Judicial Review: Proposals for Reform.

The IRAL report

was published on 18 March 2021 - see the report (195 pages pdf).

The government's response to the report was also published as well as a new consultation - see the consultation document (56 pages pdf).

This post highlights key conclusions in the report and the new consultation document. It appears that the government remains determined to take reform further than the report actually recommends.

Some immediate reaction to the IRAL report may be read at The Guardian - UK government accused of distorting findings of judicial review inquiry - "The former independent reviewer of terrorism legislation has accused the government of mischaracterising the findings of the inquiry it commissioned into judicial review in order to challenge courts holding it to account."

The Guardian went further and commented that - It's politics that needs fixing and not the courts

The Report's conclusions:

The Report is not a "complete analysis of judicial review" but is intended "to reflect some of the current concerns about judicial review, as reflected in the terms of reference and in the responses to the call for evidence." 

The report provides the government with some options for change but emphasises that any changes should "only be made after the most careful consideration given the important role that judicial review plays in our constitutional arrangements and, in particular, in maintaining the rule of law."

The panel noted that the Human Rights Act was outside its terms of reference but there is an independent review of the Act under the chairmanship of Sir Peter Gross. It was also noted that mmigration gives rise to the majority of judicial reviews and the law in this area is "generally regarded as lacking clarity" and is the subject of a recent Law Commission Report - Simplification of the Immigration Rules.

General codification of judicial review "is an option but the advantages of this are comfortably outweighed by the disadvantages."

Parliament could legislate to reverse particular court decisions if there is a strong case to do so. (Note - that has always been the constitutional position - Parliament has the final say on what the law is).

Parliament could legislate to set out what is non-justiciable and / or the circumstances in which the courts should defer or exercise restraint. The Panel specifically states that it does not recommend this.

Parliament could exclude judicial review generally but this would be contrary to the rule of law.

Parliament could oust or limit the jurisdiction of the courts in particular circumstances if there is sufficient reason for doing so. In this event, it would have to confront "hostility" from the courts, careful parliamentary scrutiny and rule of law arguments.

The Panel recommended legislation to reverse the decision in CART - [2011] UKSC 28.

Parliament ought to provide (or the judges should develop) a remedy of suspension to alleviate the bluntness of a quashing order.

The report notes that it would be very difficult for Parliament to improve the law on procedure and the panel stated that it did not recommend altering the law on standing (i.e. who may bring a judicial review).  However, the courts should be encouraged to do more to address the issue of standing in claims that come before them. Criteria should be developed and publicised for determining when the courts will hear from an intervener. The government should revisit the guidance it currently follows in determining how to discharge its duty of candour to the court hearing a claim for judicial review against it.

Claims for judicial review have to be broought both within 3 months and also promptly. The report recommends removal of the promptly requirement but not the 3 month limit. 

The panel made some "concluding observations" and asked the government to think long and hard before seeking to curtail the powers of the judiciary. "It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions. Recent decisions provide a clear illustration of this, On one view, a degree of conflict shows that the checks and balances in our constitution are working well." (Note -  practically, judicial review is only possible when there is adequate funding to bring the case).

The Panel also points to a continuing need for respect by judges for Parliament. This is made easier when there is evidence of real parliamentary scrutiny. It goes to the weight which courts should give to decisions of the executive - see Dolan v Secretary of State for Health and Social Care [2020] EWCA 1605. At para 86 the Court of Appeal said - "We must bear in mind that the regulations were approved by Parliament using the affirmative resolution procedure, albeit this occurred some weeks after they were made, as they were made in accordance with the emergency procedure in section 45R. Although this does not preclude judicial review of the regulations, it does go to the weight which the courts should give to the judgement of the executive, because it has received the approval of Parliament."

The report concludes by saying - "Respect should be based on an understanding of institutional competence. "Our view is 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. Politicians should, in turn, afford the judiciary the respect which is is undoubtedly due when it exercises these powers."

It seems reasonable to suppose that this report was not what the government hoped for. The response was to issue a further consultation going further than the report.

The latest consultation:

The government's latest 56 pages consultation document call for responses to 19 questions. 

The government agrees with proposals to:

(a) legislate for the introduction of suspended quashing orders,

(b) to reverse the effect of the Supreme Court's decision in CART so that decisions of the Upper Tribunal to refuse permission to appeal will NOT be subject to the supervisory jurisdiction of the High Court - (this would reduce the number of judicial reviews),

c) remove the requirement to act promptly but retaining the 3 month limit and to provide further guidance about intervenors.

The government is also considering further reforms "which build on the analysis in the report." The government thinks there is merit in exploring the following areas to see whether practical measures could address some of the issues identified in the report:

a) legislating to clarify the effect of statutory ouster clauses (i.e. statutory provisions which seek to prevent or limit judicial review),

b) legislating to introduce remedies which are prospective only to be used by the courts on a discretionary basis,

c) legislating that, for changes of Statutory Instruments, there is either a presumption or a mandatory requirement for any remedy to be prospective only,

d) legislating for suspended quashing orders,

e) legislating on the principles which lead to a decision being a nullity by operation of law,

f) making further procedural reforms.

Ministry of Justice - Judicial Review: Proposals for reform 


Joshua Rozenberg 23 March - Faulks defends judicial review

Professor Paul Craig - Emeritus Professor of English Law, St John’s College, Oxford - The Independent Review of Administrative Law: The Government Response and Consultation Exercise

Joshua Rozenberg 29 March - Cart may be overturned - Concerns have been raised about the accuracy of statistics that the Faulks inquiry into judicial review used to justify one of its two main recommendations. 

Professor Mark Elliott - Public Law for Everyone 6 April 2021 - Judicial Review Reform I: Nullity, remedies and constitutional gaslighting - where Professor Elliott concludes - "... the Government’s astonishing proposals amount to nothing other than an attempt to launch an assault on judicial review under the cover of promoting the rule of law. Even in a post-truth age, such constitutional gaslighting cannot be allowed to go unchallenged."  

Professor Mark Elliott - Public Law for Everyone 11 April 2021 - Judicial Review Reform II: Ouster clauses and the rule of law - " ... the detail of these proposals demonstrates a commitment on the part of the Government not to upholding the rule of law but, rather, to weakening judicial review and, in doing so, undermining the UK’s primary constitutional mechanism for securing Government under law." 

Public Law for Everyone - Judicial Review Reform III: Substantive Review and the courts' constitutional role

Public Law for Everyone - Judicial Review Reform IV: Culture war? Two visions of the UK constitution  

The Guardian 30 April - Judicial review changes will make government 'untouchable', warns Law Society

Institute for Government - Judicial review and policy making

Faculty of Advocates 20 May 2021 - No case for immunity from judicial review  

Law Society of Scotland 24 May 2021 - Faculty opposes "chilling" ideas to curb judicial review

22 March 2021.

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