Background to the JR Bill
The Judicial Reform and Courts Bill (the JR Bill) is in the final stages of approval in the House of Commons and is expected to become an Act before the end of the year.
The JR Bill began with the appointment of the Independent Review of Administrative Law (the IRAL) in July 2020 to examine the need for reform in the Judicial Review process. The IRAL put out a call for evidence in September 2020, issued in two parts: the first with questions specific to Government departments and the second with more general questions for all relevant stakeholders. The matter before the Tribunal considered here relates to the first part.
The IRAL issued relatively modest proposals for reform following evidence that the Judicial Review process as it stands is fit for purpose and no significant amendments were needed, including from this Firm.
The Government, seemingly impassive to these recommendations, launched a consultation in March 2021 in order to investigate "whether the correct balance is being struck between the rights of citizens to challenge Executive decisions and the need for effective government". The approach of the consultation appeared to suggest that it favoured greater reform than that proposed by the IRAL.
The Unpublished Submissions
A number of Government departments, including 10 Downing Street, responded to the September call for evidence from the IRAL. However, these submissions were not published (the Unpublished Submissions) and subsequent Freedom of Information requests to the Ministry of Justice (MoJ) were rejected. Public Law Project (PLP) made a complaint to the Information Commissioner's Office (the ICO) who decided in favour of the MoJ.
PLP appealed the ICO's decision to the First-tier Tribunal (General Regulatory Chamber) (the Tribunal) on the grounds that the public interest in transparency outweighed any exemption from disclosure under the convention of collective responsibility.
Ruling of the Tribunal
While the Tribunal accepted that there is a general and important "public interest in openness and transparency, which contributes to better governance, accountability, and democracy", they ultimately ruled that the Unpublished Submissions should remain confidential.
The Tribunal focused on the public interest in maintaining the convention of collective responsibility. As individual members of Government are held accountable for collective decisions, they should be afforded the right to have full and frank discussions prior to these decisions.
The Unpublished Submissions contained a range of divergent views and the Tribunal ruled that the disclosure of these would "undermine the ability of Ministers to maintain a united front" and it would be more difficult for Ministers to defend the Government's final collective decision.
The Tribunal's comments on transparency
However, while the Tribunal did ultimately rule in favour of collective responsibility, it did side with many of PLP's arguments on transparency. The Tribunal looked at the effect of transparency on both the public and Parliamentary debates surrounding the JR Bill. While most of this was academic, as the Parliamentary debate has all but concluded, these remarks are an important indicator of the Judiciary's views on Executive transparency.
The Tribunal rejected the MoJ's position that 'nothing' in the Unpublished Submissions was capable of contributing to the public debate on Judicial Review reform. PLP submitted that the Unpublished Submissions would uncover details about the relationship between the Government and the IRAL that the public ought to be aware of. While the Tribunal agreed with PLP that "the twin public interests in openness and transparency also bite on the relationship between the Government and IRAL", having viewed the Unpublished Submissions, it did not believe that disclosure would assist the public in understanding the nature of the relationship.
The Tribunal further rejected the MoJ's submission that to disclose the Unpublished Submissions would 'add nothing' to the Parliamentary debate on the Bill. The Tribunal found that disclosure would "facilitate heightened scrutiny" of the Bill and would "enable Parliamentarians to consider additional proposals for reform".
Next stages in Judicial Review reform
Without disclosure of the Unpublished Submissions, it is impossible to tell how much weight was afforded to this unseen evidence in the drafting of the JR Bill. In the September call for evidence, Government departments were asked the question "does Judicial Review seriously impede the proper or effective discharge of central or local governmental functions?". Certain amendments to the JR Bill may have been drafted with the responses to this question in mind, notably in relation to quashing orders. However, without sight of the Unpublished Submissions we do not know whether Government departments did indeed conclude that reform was necessary, or indeed whether the departments were aligned in their conclusions.
The Tribunal's assertive comments on transparency under the umbrella of these reforms sent a clear signal on the importance of Judicial Review: it is "essential to the rule of law" and proposals for reform are of "high constitutional significance".