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Lack of transparency a real threat in considering reforms to judicial review

Posted on 30 November 2020

Lord Faulks, the Chairman of the Independent Review of Administrative Law Panel ("IRAL") tasked with considering questions relating to judicial review, has recently revealed that the panel has no plans to publish all the evidence it has received, or indeed to commit to when and how the panel's report will be published.  Certain bodies have tried to redress potential issues raised by Lord Faulk's decision, including the UK Administrative Justice Institute ("UKAJI") which has published a collection of responses to the IRAL which have to date been made public (including that submitted on behalf of this Firm).  However, no response received from a Government department has yet been published.  This has highlighted concerns relating to the transparency of the IRAL process and has led to further criticism of Lord Faulk's decision, raising questions relating to whether (currently unseen) evidence received on behalf of Government departments will be afforded more weight in the final report than other evidence. 

To understand the criticism, it is important to consider the structure and premise of the call for evidence put out by the IRAL panel on 7 September 2020 (and which closed at the end of October 2020).  The call for evidence was split into three sections, the first of which posed questions exclusively to Government departments, with the general gist of these questions being whether the threat of judicial review hampers effective decision making.  Directing a whole section only to Government departments is surprising for a number of reasons. 

First, as this Firm highlighted in our response to the call for evidence, the majority of judicial review cases are brought against defendants outside of central Government.  This was true of the data across the past ten years.  Given this, it seems misplaced to weight the call for evidence to the views of Government departments and indeed to base any proposals for reform on such views. 

Second, when considering responses to previous consultations on judicial review, it is clear that Government departments have not provided any evidence.  In the 2013 consultation of judicial review run by Chris Grayling MP, 252 responses were received to the call for evidence.  None of these responses came from Government departments.  Similarly, in a follow up call for evidence on judicial review in 2014, 324 responses were received.  Again, no responses were provided by Government departments.  The sole focus now by the panel on the views of Government departments to consider whether judicial review does hamper efficient decision making is novel and may lead to the debate being skewed.

This is particularly of concern when the substance of the section directed to Government departments is considered.  The genesis of this section can be found in the 2019 Conservative Party manifesto, which included a commitment to seek to ensure that the process of judicial review is "not abused to conduct politics by another means or create endless delays".  The section in the call for evidence accordingly includes questions such as whether eleven different listed aspects of judicial review "seriously impede the proper or effective discharge of central of local government functions"; whether the prospect of being judicially reviewed results in "compromises which reduce the effectiveness of decisions"; and whether there are "any other concerns about the impact of the law on judicial review on the functioning of government".  Yet, from the responses which have been made public by the UKAJI, it is clear that the premise on which these questions are based is wrong: judicial review in fact leads to better decision making.

Lawyers in Local Government ("LLG"), a not for profit membership company which represents local authority lawyers, monitoring officers and governance officers across England and Wales, was unambiguous in its response to call for evidence.  LLG affirmed that the judicial review process provides the foundation for effective advice to be given within local Government, engendering "robust and lawful decision making" whilst protecting access to justice.  This narrative, that the judicial review process in fact improves decision making by ensuring that those in power take decisions with due consideration to their lawfulness, is consistently evident in the published responses; not least in the responses from Government advisors.  Indeed, 11 Kings Bench Walk ("11KBW"), whose barristers regularly act for Government decision makers in judicial review proceedings, reports that they are often told that the judicial review principles ensure that their clients have "thought broadly about the nature of their powers, and the relevant (and irrelevant) considerations for their decision-making". 

The broad consensus from the respondents is that, far from hindering effective decision making, the current principles of judicial review provide a valuable safeguard for those in the unenviable position of making, what are often unpopular, decisions.  The LLG aptly note that: "On balance, any perceived 'inconvenience' or 'irritation' some judicial reviews might be perceived to create is wholly outweighed by the rule of law, access to justice and accountability.  It remains at the very core of our democracy that decision makers can be held to account by the public which they serve."

The Constitutional and Administrative Law Bar Association (ALBA) is a professional association of barristers in England and Wales practicing in public law, including barristers working in the UK Government Legal Service.  It notes that the IRAL webpage could be read as suggesting that the Government, or other executive bodies, should (following a reform) be permitted to act in a way that would currently be unlawful under the auspice of more "effective and efficient" governing.  The response continues that, "if this were to be the justification for considering changes to the law of judicial review, it would be a matter of grave concern, as it would exhibit scant understanding of the constitutional importance of judicial review in upholding the rule of law".  This concern was echoed in the LLG's response which noted that: "The questions here sit uncomfortably with the importance of maintaining the rule of law". 

It is against this backdrop that the decision by Lord Faulks not to publish in full the responses to the call for evidence must be viewed.  If any proposals to judicial review are suggested seemingly to improve effective decision making – which run contrary to the broad consensus in the responses we have seen to date – the IRAL panel must properly set out what the response from Government departments was to this section of the call for evidence.  Any failure to do so will lead to serious questions about the legitimate basis for any proposed reforms and indeed the proper weighting of evidence by the panel.

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