On 18 March 2021, the Independent Review of Administrative Law panel chaired by Lord Faulks QC (the Panel) published its report on judicial review (the Report). In brief, the Report made only modest recommendations for reform proposing just two substantive reforms and four procedural changes for consideration by the Civil Procedure Rules Committee.
On 31 July 2020, the Government announced the launch of the independent review (the Review) to examine trends in judicial review and to consider appropriate reforms.
In September 2020, a call for evidence to inform the Review was circulated, querying whether, “judicial review strike[s] the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?” This Firm submitted a response to the Panel's call for evidence, arguing that the evidence reviewed indicated neither an encroachment on Executive power by the judiciary nor a justification for further restrictions on the use of judicial review or its process.
It was interesting to note that the Panel acknowledged the role that the two Miller cases had played in triggering the review and queried the consultation's focus on the role of the executive to govern effectively. The Panel found the exclusion of the role of Parliament from review's terms of reference surprising and emphasised that it was critical that Parliament is not regarded as "supine and incapable or unwilling to change or enact legislation, particularly of a constitutional character." Indeed, there are numerous examples of Parliament enacting constitutional law including the Human Rights Act 1998, the Fixed Terms Parliament Act 2011 and the European Union (Withdrawal) Act 2018. However, the political context for each of these Acts has left them open to stark criticism and debate. The Panel cautioned against legislating reactively to the Miller cases as a result of the setbacks they caused the Government, noting that both cases were the product of unique political circumstances and are unlikely to have wider ramifications. Indeed, the Panel agreed with Sir Steven Sedley's observation that:
"The Panel may find itself urged to treat one or more recent cases as evidence of a need for systemic reform. I would respectfully counsel caution about leaping from the particular to the general. For example, I am among those that doubt the conclusions of the Evans case; but to treat the outcome of the case by itself as evidence of dysfunction in the system of public law is to invite a cure worse than the disease".
Whilst this Firm had expressed some concern regarding the short timeframe of the consultation period in relation to previous reviews, we were reassured by the Panel's acknowledgment of this shortcoming and its acknowledgment that the Review should not be regarded as a "comprehensive assessment" of judicial review. The Report is limited to the specific perceived issues identified in the terms of reference.
Findings in the Report
It is clear from the Report that this Firm's response was not alone in raising concerns that potential reforms could significantly undermine the fundamental constitutional law principle of the rule of law. According to the Report, the overwhelming number of submissions did not support the codification, or even partial codification, of the current process. Indeed, only six respondents were in favour of codification, 22 favoured partial codification and 110 were against codification altogether. Those opposing substantial reform argued, variously, that reforms risked doing more harm than good and that any efforts to codify were likely to make judicial review more confusing (and therefore less accessible) than in its current form. The Panel's unequivocal recommendation was that it did not support substantive reform in relation to codification.
Notably, only 14 Government departments responded to the Panel's call for evidence (responses from Government departments made up only 6% of the responses received by the Panel), and their responses have not been made publically available. The inaccessibility of the Government responses makes it very difficult to engage effectively with the issues in dispute. It is surprising, however, that despite the alleged importance of reform in this area for the Government, responses from its own departments were relatively scarce. The Panel commented on this noting its "disappointment" given one reason for its appointment being the "perceived adverse effect on government departments" of the increase in judicial review applications.
On the question of non-justiciability, the Panel noted that the overwhelming majority of responses from those outside the Government did not favour legislative intervention on the issue of non-justiciability. Having considered the submissions, the Panel advised caution in limiting the judiciary's powers, noting that "the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers". Judicial independence is of course essential in upholding the rule of law. In fact, the Report potently concludes that "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", concluding that "Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers".
The two substantive reforms recommended by the Panel were to legislate to reverse the Supreme Court's decision in Cart, in order to re-affirm the position that decisions of the Upper Tribunal to refuse permission to appeal are not subject to the supervisory jurisdiction of the High Court, and to legislate to introduce suspended quashing orders. This Firm strongly supports the right of Parliament to enact laws that correct perceived judicial overreach: a power that we endorsed strongly in our response to the Government's recent Independent Human Rights Act Review. In fact, the proposed introduction of suspended quashing orders, i.e. a quashing order that automatically takes effect after a certain period of time if certain specified conditions are not met, is analogous to the remedial reforms we proposed in relation to section 10 of and Schedule 2 to the Human Rights Act 1998. Our response proposed a temporal requirement on the Government's response to a declaration of incompatibility by the courts.
Government response and consultation
Despite the Panel's words of caution in the Report, and the lack of engagement in the review from its own departments, we note with some concern that the Foreword to the Government response to the Report stated that "[t]he Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction [...]". Additionally, the press release for the Consultation states that "the panel found courts were increasingly considering the merits of government decisions themselves, instead of how those decisions were made – moving beyond the remit of judicial review." Whilst the Report did note certain occasions of potential judicial overreach, the Panel stated that "we are optimistic that if there are examples of judicial overreach in the past, the judiciary may well recognise this and ensure that such overreach is both corrected and will not occur in the future". The Government analysis therefore does not appear to fully reflect the thrust of the findings in the Report.
This view echoes that of Panel chair, Lord Faulks QC, who was interviewed by Joshua Rozenberg during the Law in Action podcast aired on 23 March 2021. Mr Rozenberg quoted the Lord Chancellor, Robert Buckland's, statement that, "the report's finding- that there is a growing willingness to accept an expansion of the remit of judicial review [...] is a worrying one" and asked Lord Faulks QC whether this was what the enquiry had found. Lord Faulks QC responded, "no, I don't think it really was our finding". He explained, "I think we found that there were one or two cases which we particularly pointed out where there was considerable tension between what was legitimate to be considered by the courts and what was really a matter of politics. But those were particular cases. We do not think that there was an overall trend that you could extract from those cases".
Mr Rozenberg also put to Lord Faulks QC the quotation from the press release for the consultation and asked if this was a fair summary, to which Lord Faulks QC responded, "I don't think it is, no, there are some cases which we thought [...] were crossing a line but it's one thing to say well there were one or two cases the result of which is questionable, to then go on and conclude that there's an overall drift in one particular direction and I think there's a slight danger that you can go from the particular to the general".
Further, on 18 March, the Lord Chancellor announced the launch of a consultation on further judicial review reforms (beyond those recommended in the Report) (the Consultation). The Lord Chancellor described the Panel’s recommendations as a "starting point for rebalancing our system" but said that the Government "would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process". The Consultation closes on 29 April 2021 and will hopefully give "the most careful consideration" to any changes, as the Report emphasises is appropriate.