Review of Judicial Review: Views sought as Government seeks to go beyond IRAL's recommendations


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After a call for evidence in September last year, the Independent Review of Administrative Law (IRAL) published its independent review of administrative law on 18 March 2021 (the Report). On the same date, the Government set out its response to the Report.

The IRAL's call for evidence had identified wide ranging areas of inquiry, including an examination of the arguments for introducing legislation to set out the rules for Judicial Review, the areas that can be subject to Judicial Review and procedural reforms.

However, the Report's recommendations are relatively modest and few. Alongside procedural changes, there are two substantive recommendations: the first, to limit the ability to judicially review a decision of the Upper Tribunal where it refuses permission to appeal against a decision of the First-tier Tribunal on the grounds of an error of law ("Cart JR") and the second, to introduce suspended quashing orders.

The response to the Report sets out the Government's agreement with the recommendations, but also confirms the Government's wish "to go further". As part of a further consultation, the Government states that it seeks to "clarify" the scope of statutory ouster clauses, to legislate to introduce remedies which are of prospective effect only and to introduce presumptions limiting the remedies currently available in certain cases. In addition, the Government's response includes its own proposals that were "gleaned" from the responses to the review and it considers "merit further investigation".

The Ministry of Justice invites views on the Report and the Government's response, which should be received by 29 April 2020, here: https://consult.justice.gov.uk/judicial-review-reform/judicial-review-proposals-for-reform/

Comment

In the foreword to the Government's response, the Lord Chancellor says that the Report "identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made". Lord Faulks, chair of the IRAL, has suggested that is not an accurate characterisation of the Report's contents. Instead, the Report indicated that a few individual cases (that were unlikely to be repeated) did not represent a systemic issue within judicial review.

The commitment, time and resources invested in making these changes may be considered surprising given the Report's conclusions regarding the overall reach of judicial review claims.  As referenced by the Public Law Project in its submission to the IRAL, statistics from the Ministry of Justice show that the overall number of judicial applications is low, with the number of applications to the Administrative Court appearing to decline, dropping below 4,200 in 2017 for the first time since 2000, falling further in 2018 and 2019.  Nevertheless, tackling "judicial over-reach" remains a Government priority.

As the Government's response explains, commitments to targeted, incremental change should be viewed with caution – the Government states that "the risk of unintended consequences is one the Government is cognisant of and will explore". It remains to be seen whether the specific areas that the Government is now consulting upon could lead to more wide ranging changes to judicial review than the IRAL had initially anticipated.

For further information please view our public and administrative law page.

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