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Mishcon responds to the Independent Review of Administrative Law panel on Judicial Review

Posted on 28 October 2020

Mishcon de Reya responded this week to the call for evidence from the Independent Review of Administrative Law panel on Judicial Review.  The response was compiled based on Mishcon's extensive experience acting in judicial review claims, including in two of the most important constitutional law cases in memory (Miller 1 and Miller 2), and on data analysis undertaken of 10,000 judicial review cases over the past ten years.

The response argued that the evidence and case law do not indicate an encroachment on Executive power by the judiciary, and the number of judicial reviews reaching a hearing continue to decrease year on year. We have not seen any evidence that would indicate that further restrictions on the use of judicial review or the process would be justified or lead to greater clarity.  Instead, this Firm is concerned that potential reforms may significantly undermine the fundamental constitutional law principle of the rule of law. 

Katy Colton, Head of the Politics and Law Group, commented: "The response by Mishcon to the IRAL makes clear that judicial review is an indispensable element of the system of checks and balances that govern our democratic society, and that there is no evidential basis necessitating reform of the system. Our constitution must of course be protected, and the principle that Government decisions are subject to the law as interpreted by the independent courts is a fundamental part of that."

In summary, the Firm made seven key points in response to the IRAL panel’s call for evidence:

  1. The majority of judicial reviews are brought against public bodies outside central government, and therefore any proposal for reform based only on the experience of central Government as defendants would be inappropriate;
  2. Codification of the judicial review process will not lead to greater clarity or accessibility in the law, but instead will likely lead to increased and likely costly satellite litigation on procedural issues, ambiguity and Executive overreach, as has been seen in Australia;
  3. In the event that IRAL identifies an evidential basis for a restrictive approach to codification, we believe that a more expansive and detailed comparative study on codification is required. However, we are concerned that any further restriction of the scope of or access to judicial review would undermine the very fundamentals of our constitution;
  4. There is no basis upon which to conclude that “political decisions” or prerogative powers should be rendered non-justiciable, and in fact the courts provide Parliament and decision makers with wide discretion on decisions of a political nature. This margin of appreciation has only increased during the Covid-19 pandemic, during which the courts have recognised the requirement for Government to make difficult decisions quickly in crisis;
  5. We welcome any recommendations generally to make court procedures simpler;
  6. We do not support proposals that would make it harder for individuals to bring judicial review claims, and note that there already exist a number of safeguards in the judicial review procedure for deterring unmeritorious claims including strict time limits and the requirement for permission; and
  7. We are in favour of greater focus on ADR in judicial review.

Please click here to read the full response. For further information on the Firm's Politics and Law practice, click here.

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