Judicial Review Reform - Further Consultation

Following last year’s Review of Administrative Law, the Ministry of Justice has published a further consultation on Judicial Review. Helen Hutton provides an update

The response of the Ministry of Justice to the Independent Review of Administrative Law, produced by a panel of experts appointed by the Government, was published on 18 March.  In taking to the next stage the Government’s Manifesto commitment to “ensure that Judicial Review is available to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”, the Ministry of Justice has summarised its views of the panel’s findings and issued a further consultation on the proposed “reform of Judicial Review”.  Responses to this consultation are due by 11.59 pm on 29 April 2021. 

The Government also published a later summary of its submissions to the Independent Review, on 6 April 2021.

The panel report

The panel’s report had identified a growing tendency for the Courts in Judicial Review cases to shift from a strictly supervisory role, checking the way in which the decision was made, to becoming more willing to review the merits or moral value issues of the case.

The panel had put forward two proposals for reform:

1. to reverse the effects of a Supreme Court judgement in 2011 (R (Cart) v the Upper Tribunal) by re-affirming that decisions of the Upper Tribunal to refuse permission to appeal, are not subject to the supervisory jurisdiction of the High Court, the aim being to reduce such challenges, whose success rate only averaged 0.22%; and
2. to introduce suspended quashing orders as a new remedy, to give the decision maker the chance to rectify the breach, before the decision is quashed.

In addition, the panel had proposed changes in procedure which would include removing the requirement for a claim to be issued “promptly” but retaining the three month limit, providing guidance on intervenors and providing an extra step with a “Reply” being required within 7 days of receipt of the Acknowledgement of Service.

18 March consultation 

In his introduction, the Lord Chancellor summarises his overall aim as restoring “the place of justice at the heart of our society by ensuring that all the institutions of the State act together in their appropriate capacity to uphold the Rule of Law”.  He sees that this would be achieved by affirming the role of the Courts as ‘servants of Parliament’, affirming the role of Parliament in creating law and holding the Executive to account, and affirming that the Executive should be confident in being able to use the discretion given to it by Parliament.  He also recognises the need to preserve fairness in our justice system, a fairness which he recognises protects the rights of citizens in challenging Government or other public bodies and which affords them appropriate remedies. 

The Lord Chancellor intends these reforms to apply to England and Wales only, but he then brings in a rather unexpected element – that he is concerned about the risks of fragmenting the legal jurisdictions of the UK.  He sees a requirement of these reforms as strengthening the Union and calls for views on them from the whole of the UK.

In this publication, the Ministry of Justice agrees with the above ideas, but it is clear that it would also like to take the reforms further, as it is now exploring additional proposals, including further reforms to remedies and specifically on statutory “ouster clauses”.  An ouster clause, which would be brought in by way of primary legislation, would prevent a decision or use of a specific power from being reviewed judicially.  The consultation also proposes a discretionary prospective quashing order as a way to clarify the principles which determine how the Courts declare decisions null and void, and having never occurred (ie the principle of nullity).  The Ministry of Justice acknowledges that these additional proposals are in the early stages of development, but it wishes to consult on them now, in order to take into account what it believes will be a very diverse range of views and ideas on them, in advancing the overall JR reforms. 

More time?

There have already been requests for the timeframe for responses to this consultation to be extended, including by law firm Bindmans, which has written to the Ministry of Justice requesting more time and threatening that any actions resulting from the consultation may be subject to challenge.