Judicial review: Time for change?

Claire Brader

Summary

The judicial review process may be subject to change during this parliamentary session. In July 2020, the Government launched the Independent Review of Administrative Law (IRAL). The IRAL will determine if the judicial review process needs reforming. This followed several high-profile judicial review cases that saw the Supreme Court rule against the Government.

What is the Government’s plan for judicial review?

The Conservative Party’s manifesto for the December 2019 election committed to a broad review of the UK constitution. As part of this commitment, the Conservative Party said it would “ensur[e] that [judicial review] is not abused to conduct politics by another means or to create needless delays”.

The Government launched the Independent Review of Administrative Law (IRAL) in July 2020. An independent panel of experts, chaired by Lord Faulks QC, is leading the review to determine if an appropriate balance exists between the rights of citizens to challenge executive decisions and the government’s ability to work efficiently and effectively. The IRAL considerations include, amongst other things, whether the terms of judicial review should be codified in law and whether judges should be able to decide on certain executive decisions.

The IRAL held a call for evidence from 7 September 2020 to 26 October 2020. This sought views on whether the existing judicial review process struck the right balance between allowing the public to challenge government action whilst ensuring that government can conduct its work. The panel is currently considering the responses received to the call for evidence.

The Conservative Party’s 2019 manifesto originally proposed setting up a constitution, democracy and rights commission to carry out the review of the UK constitution. In December 2020, the Justice Secretary, Robert Buckland, confirmed that, rather than establishing one entity that could look at all issues, the Government would instead launch several independent and focused reviews. These focused reviews include the IRAL and the recently launched independent review of the Human Rights Act.

Recent judicial review cases

Discussion about judicial review has recently increased following several high-profile cases.

In January 2017, the Supreme Court considered a judicial review case that claimed the Government needed an Act of Parliament before it could give formal notice of the UK’s decision to withdraw from the European Union. The Supreme Court held that an Act of Parliament was required to allow ministers to give this notice.

A more recent case saw the Supreme Court consider the lawfulness of the proroguing of Parliament in September 2019. The Supreme Court held that Parliament’s suspension had been unlawful. The Supreme Court said that the prorogation had the effect of frustrating or preventing Parliament carrying out its role without reasonable justification.

The Times reported in February 2020 that the Prime Minister planned to speed up moves to limit the powers of individuals to challenge ministers in courts through judicial review. This followed a ruling from the Court of Appeal that stopped the deportation of 25 people from the UK to Jamaica following claims that they had been denied access to lawyers.

Why does the Government think a review is important?

When announcing the launch of the IRAL, the Justice Secretary, Robert Buckland, said that the IRAL would “ensure this precious check on government power is maintained, while making sure the process is not abused or used to conduct politics by another means”.

During a debate on leaving the European Union in January 2019, the then Attorney General, Geoffrey Cox, said that the Government wanted to determine whether the judicial review process could be made more efficient and streamlined. Mr Cox referred to certain judicial review cases that “should perhaps never have been started” and spoke of “prevent[ing] the courts from being clogged up with [such] applications”. Mr Cox’s statements were in response to Nick Thomas-Symonds, the Shadow Solicitor General, expressing concern that:

the Prime Minister was seeking some sort of vengeance because he did not like the Supreme Court’s decision that his prorogation of Parliament was unlawful.

Mr Cox was separately reported in The Times to have said that the Government’s desire to amend judicial review did not stem from the prorogation ruling of the Supreme Court. The newspaper quoted Mr Cox as saying that “[the] desire [to amend judicial review] has been around for a long time”. For instance, in February 2014, the then Justice Secretary, Chris Grayling, said:

In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool or simply to delay legitimate proposals.

What has been the reaction to the Government’s plans?

The Law Society of England and Wales, in response to the IRAL call for evidence, said it did not believe that there was a need for fundamental reform of judicial review. This was because there was evidence that judicial review is “working well and achieving its purpose”.

The Bar Council of England and Wales rejected the suggestion in the call for evidence that there is a conflict between judicial review and the “proper and effective discharge of government functions”. To the contrary, it described judicial review as a “critical mechanism” for securing proper and effective government functions. The Victims Commissioner, Dame Vera Baird QC, also said that judicial review should be regarded as a means of enhancing the effectiveness of government and not undermining it. The commissioner urged the panel to approach its tasks in the IRAL with “care and caution”.

In January 2020, writing both before becoming Attorney General and the launch of the IRAL, Suella Braverman expressed her support for the Government’s plans to review the judicial review process and to ensure that the boundaries of judicial review are appropriately drawn”.

In March 2020, Lord Reed of Allermuir, the President of the Supreme Court, was reported in the Law Gazette as having argued that judges had not “over-extended their reach”. Lord Reed said that the relationship between Parliament and courts needed addressing. In response to the Prime Minister’s proposals for a constitution commission to examine the role of judicial review, Lord Reed said:

Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.

What is judicial review?

Judicial review is a process where a judge reviews the lawfulness of a decision or action made by a public body. Judicial review considers the way that a decision has been made. It does not determine the rights and wrongs of the conclusions reached.

The judicial review process has already been subject to amendments over the past decade. In 2012, the Government introduced a reduced time limit for bringing judicial review cases for certain planning decisions and procurement cases. In 2015, part 4 of the Criminal Justice and Courts Act 2015 introduced changes to the judicial review process. This included changes relating to the disclosure of information about how cases are funded and the circumstances in which the costs liability of claimants could be capped.

What are the Government’s next steps?

It is unknown when and what changes to the judicial review process may be introduced. In December 2020, the Justice Secretary, Robert Buckland, confirmed to the House of Commons Public Administration and Constitutional Affairs Committee that the IRAL was moving towards its final phases. Once the IRAL is complete and findings published, the Justice Secretary believed that the Government could emerge with its proposals in spring 2021. He did emphasise that these were speculative timescales only. In absence of the IRAL panel’s final report, the Government was unable to provide confirmation of when, and in what form, its proposals for judicial review reform would be released.