Government introduces the Judicial Review and Courts Bill into Parliament

On 21 July, the Government introduced the Judicial Review and Courts Bill into Parliament. The Bill was foreshadowed in the Queen’s Speech on 11 May as part of the Government’s aim to ‘restore the balance of power between the executive, legislature and the courts’. The Government’s press release states that the Bill will ‘equip judges with the tools to give more tailored solutions in judicial review cases’. The Government has published a number of ‘fact sheets’ on aspects of the Bill, accessible here, as well as a detailed explanatory note.

As anticipated, the Bill includes provisions for quashing orders to be made subject to conditions, namely to not take effect until a date specified in the relevant order (i.e. suspension of the order) or removing or limiting any retrospective effect of the quashing of the impugned act. Judges will be “empowered” to use these powers at their discretion.

The Bill also provides for the removal of “Cart” judicial reviews(subject to some limited exceptions). Applications for judicial review against a decision of the Upper Tribunal (the “UTT“) to refuse permission to appeal against a decision of the First-Tier Tribunal (the “FTT“) on the basis that the FTT’s decision was affected by an error of law and therefore the UTT’s decision was also so affected are referred to as applications for a “Cart” judicial review. They derive their name from the decision of the Supreme Court in R (Cart) v The Upper Tribunal [2011] UKSC 28. Described as “inefficient” by the Government, the removal of “Cart” judicial reviews follows a recommendation made in the report by the Independent Review of Administrative Law (“IRAL“). The Bill does, however, provide for some limited circumstances in which a challenge can still be brought to a decision of the UTT on permission to appeal. These are set out in Clause 2(4) and include where the UTT has acted in bad faith or in fundamental breach of the principles of natural justice.

The Bill does not provide for clarification on the effect of statutory ouster clauses more generally or on the principles which lead to a decision being a nullity by operation of law. These were topics on which the Government recently consulted (along with the removal of “Cart” judicial reviews and modifications to quashing orders). The Bill’s explanatory note makes clear that the Government has “decided not to proceed with” these proposals following consideration of the IRAL report and responses to the consultation.

The Bill is awaiting a second reading on a date to be announced. With the House of Commons now in recess, this will not take place before Parliament resumes in early September.

Our previous blog posts on this topic can be found here:

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Public Law Podcast: Government Consultation on Judicial Review

In the latest episode of our Public Law Podcast, Andrew Lidbetter, Nusrat Zar and Vikram Sachdeva QC of 39 Essex consider the Government’s recent consultation on judicial review following the Independent Review of Administrative Law submitted in January.

You can read more about the issues discussed in this episode in the following blog posts:

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We welcome feedback and if you would like us to cover particular topics in the future please use the contact details below to get in touch.

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HSF responds to Government’s Consultation on Judicial Review Reform

The Queen’s Speech on 11 May announced a Judicial Review Bill. This followed a consultation on judicial review reform launched by the Government on 18 March 2021 (the “Consultation“) and the publication of the report by the Independent Review for Administrative Law (the “IRAL“) on its review into possible reforms to the judicial review process (the “IRAL’s Report“). Further information on the IRAL review and Report can be found in our previous blog post. This blog focuses on the Government consultation and our response in view of the forthcoming Judicial Review Bill.

The Consultation

The purpose of the Consultation as set out in the Consultation Document is to “complement the analysis presented in the [IRAL’s] Report” and to create an opportunity to consult on some of the proposals it suggested “at an early point in their development“. The questions put forward by the Consultation focus in part on the specific recommendations made in the IRAL’s Report (such as the discontinuance of Cart Judicial Review and the introduction of suspended quashing orders) which the Government agrees with and intends to take forwards. Additionally the Consultation Document sets out further reforms which the Government says there is merit in considering as a means of addressing some of the issues identified in IRAL’s Report.

The key areas in relation to judicial review claims in which the Consultation sought responses included:

  • Remedies (including suspended quashing orders and prospective remedies)
  • Ouster clauses
  • Removal of the promptness requirement
  • Consideration of a ‘track’ system
  • Requirement to identify organisations that might assist in litigation
  • Introduction of a Reply by the Claimant
  • Changes to the obligations surrounding Detailed and Summary Grounds of Resistance

Our Response

In the first section of our response we considered the Consultation’s questions on suspended or prospective quashing orders together and indicated our view that such remedies should only be permitted in exceptional circumstances, if at all. We noted that not only could such measures threaten to weaken existing remedies but they could also dampen the frameworks governing public functions by minimising the consequences of improper decision-making and in some instances depriving people of effective relief.

In relation to ouster clauses our response warned against the use of these to exclude judicial review as we believe it would be highly damaging to the accountability of Government and the rule of law.

The Consultation Document posed a series of questions on the possible removal of the promptness requirement for filing judicial review proceedings in conjunction with potential scope for encouraging the Civil Procedure Rules Committee (the “CPRC“) to offer time extensions to allow for pre-action resolution. We were generally supportive of removing the promptness requirement in our response, noting our belief that the benefits of the promptness requirement are outweighed by those resulting from the certainty that would be achieved by a fixed 3 month period in which to start proceedings. However, we consider that the 3 month period provides consistent opportunities for meaningful engagement in pre-action correspondence and allows for considered advice from practitioners, and therefore we are not in favour of extending the time limit beyond 3 months.

We were sceptical in our response about the need to introduce a requirement to identify organisations or wider groups that might assist in litigation, both because CPR 54.7(b) already partly goes to this, and also because it would be difficult in practice for many parties to identify possible interveners.

The Consultation Document was somewhat unclear in its request for responses on Detailed and Summary Grounds of Resistance but set out proposed changes to the obligations and procedure. We put forward our opinion that it is misguided to suggest that pre-action correspondence is a sufficient substitute for Summary Grounds of Resistance. Nevertheless we noted the role of pre-action correspondence generally in ensuring that the current 35 day limit before the deadline for filing Detailed Grounds of Resistance is well used and thus concluded that there was no need to extend this limit to 56 days.

Conclusion

Our overarching view is that the current mechanism for judicial review and wider administrative law functions well and does not need to be subject to any major reform. Whilst we are supportive of the Government seeking out scope for improvements in judicial review procedure, we encourage continued consultation with experienced practitioners for any significant proposed changes given the potentially wide-reaching implications for access to justice and the rule of law.

The Queen’s Speech to both Houses of Parliament on 11 May 2021 included a reference to a Judicial Review Bill in the context of the Government seeking to ‘restore the balance of power between the executive, legislature and the courts’. It remains to be seen what the Government’s next steps will be in respect of the proposed content of the Bill and any process of consulting on it.

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Publication of the Independent Review of Administrative Law’s Report and a Government Consultation into Judicial Review

On 18 March 2021, the Independent Review of Administrative Law (the “IRAL”) published its report on reform to the judicial review process (the “IRAL’s Report”) in which it made two substantive recommendations and a number of procedural recommendations. The Lord Chancellor and Secretary of State for Justice agreed with those recommendations and was “also interested in exploring proposals beyond these”. This was the basis upon which on the same day the Ministry of Justice published a consultation on judicial review reform (the “Consultation”).

Background

On 31 July 2020 the Government announced that it had appointed a panel of experts to examine if there is a need to reform the judicial review process and other aspects of public law decision making. The intention of the IRAL was to be wide-ranging in its scope. The Terms of Reference of the IRAL stated that it would “examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government”. As part of its review the IRAL’s call for evidence invited submissions on how well or effectively judicial review currently balances, on the one hand, the legitimate interest in citizens being able to challenge the lawfulness of executive action with, on the other, the role of the executive in carrying on the business of Government.

While much can be said in respect of the IRAL’s Report and the Consultation, we have focussed on the key issues.

The IRAL’s Report

In summary, the IRAL made the following recommendations for changes to the substantive law:

  • Abolishing Cart JRs: Applications for judicial review against a decision of the Upper Tribunal (the “UTT”) to refuse permission to appeal against a decision of the First-tier Tribunal (the “FTT”) on the basis that the FTT’s decision was affected by an error of law and therefore the UTT’s decision was also so affected are referred to as applications for a “Cart JR”. The IRAL received a request from judges to examine Cart JRs, which some of those who gave evidence thought adds an additional layer of appeal that is unnecessary and unintended. After conducting investigations, the IRAL concluded that in only 0.22% of all applications for a Cart JR since 2012 has granting permission to pursue an application for a Cart JR resulted in an error of law on the part of a FTT being identified and corrected. On that basis the IRAL concluded that the continued expenditure of judicial resources on considering applications for a Cart JR could not be defended, and recommended that the practice of making and considering such applications should be discontinued.
  • Allowing courts to suspend quashing orders: The remedies that are potentially available when an application for judicial review is successful are set out in section 31 of the Senior Courts Act 1981: a mandatory, prohibiting or quashing order; a declaration or injunction; damages, restitution or the recovery of a sum due. The IRAL’s recommendation in this area was that section 31 should be amended to give the courts the option of making a suspended quashing order, i.e. a quashing order which will automatically take effect after a certain period of time if certain specified conditions are not met. It is the view of the IRAL that by issuing such an order the Court would be able to acknowledge the supremacy of Parliament in resolving conflicts between the courts and the executive as to how public power should be employed.

The IRAL also made some further recommendations and suggestions, including for non-legislative changes, which are more procedural in nature. For example, it stated that there is a need to clarify the scope of the duty of candour (i.e. the requirement that a public authority, when presenting its evidence in response to an application for judicial review, to set out fully and fairly all matters that are relevant to the decision that is under challenge). The IRAL suggested that this clarification be achieved by revisiting the Treasury Solicitor’s Guidance. It also stated that some amendments be made to the Civil Procedure Rules, such as a formal provision for a Reply to be filed by a Claimant within 7 days of receipt of the Acknowledgement of Service. With regard to the time limit within which a claim for judicial review must be brought by filing a claim form at court, CPR 54.5 states that it must be “no later than three months after the grounds to make the claim first arose” but the first requirement is that this must be done “promptly”. The IRAL states that there may be a case for abolishing the requirement of promptitude and it would “certainly not favour” any tightening of the current time limits for bringing a judicial review. Also, the IRAL recommends that the criteria for permitting intervention should be developed and published, “perhaps in the Guidance for the Administrative Court”.

The IRAL explicitly ruled out some possible reforms. For instance, it rejected the concept of statutory codification because “the grounds for review are well established and accessibly stated in the leading textbooks”. However, it acknowledged that codification could make judicial review more accessible to non-lawyers. The IRAL also recommended that Parliament does not pass any comprehensive or far-reaching legislation regarding non-justiciability, but instead legislate in response to particular decisions. The IRAL warned that broader legislation in this area that purported to roll back certain developments in the law on non-justiciability would be regarded as amounting to an ouster clause and that while the use of such a clause would be justified, it is likely to face a hostile response from the courts and robust scrutiny by Parliament.

Language deferential to Parliament’s role as a legislature was incorporated throughout the IRAL’s Report, as illustrated at paragraph 2.78:

We should emphasise that our reasons for not favouring making large changes to this area of law do not include any argument that it might be inappropriate for Parliament to legislate in this area. On the contrary: we are of the firm view that it is entirely legitimate for Parliament to pass legislation making it clear what sorts of exercises of public power (or issues relating to such exercises) should be regarded as non-justiciable. We strongly agree with the view advanced by Baroness Hale in her submission to us that: ‘If Parliament does not like what a court has decided, it can change the law.’ This is the case in every other area of law, and it is hard to see why it should not be in relation to the law on judicial review.

Nonetheless, it is interesting that the IRAL chose to incorporate its observations that while R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 and R (Miller) v Prime Minister [2020] AC 373 represented “substantial setbacks for the [Government] and were of considerable constitutional importance, [the IRAL is] not convinced that the decisions (novel as they were) in those cases are likely to have wider ramifications given the unique political circumstances” at the time. Indeed the IRAL goes so far as to state that for “every controversial decision, there are many others (less publicised and less commended-upon) where judges have shown ‘restraint’”.

The Consultation

The Government agrees with the IRAL’s recommendations regarding Cart JRs and adding a remedy for suspended quashing orders, as well as removing the requirement for a claim to be issued “promptly”; providing further guidance for interveners; and providing for an extra step in the process for a Reply to be filed within 7 days of receipt of the Acknowledgement of Service. The Consultation seeks further views on these issues.

The Lord Chancellor and Secretary of State for Justice is “also interested in exploring proposals beyond these [recommendations]”. The Consultation makes clear that now is not the right time to propose far-reaching, radical structural changes to the system of judicial review, but that there is a case for targeted, incremental change. To that end the Government is now consulting on the following topics:

  • legislating to clarify the effect of statutory ouster clauses;
  • legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis;
  • legislating that, for challenges of Statutory Instruments, there is a presumption or a mandatory requirement for any remedy to be prospective only;
  • legislating for suspended quashing orders to be presumed or required;
  • legislating on the principles which lead to a decision being a nullity by operation of law; and
  • making further procedural reforms (which would need to be considered by the CPR Committee).

The Consultation closes on 29 April 2021.

Conclusion

Despite the wide remit conferred upon it at the outset of its review, the IRAL’s relatively modest recommendations may be underpinned by its view that while it “understands the [Government’s] concern about recent court defeats, [the IRAL] considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally.” However, it is clear that the Government continues to feel strongly that the courts should remain deferential to Parliament:

[It] cannot be emphasised enough that Parliament is the primary decision-maker here and the courts should ensure they remain, as Lady Hale put it, ‘the servant of Parliament’.

We note that that the Lord Chancellor and Secretary of State explains that he wants to “focus attention first on the most pressing issues, namely ouster clauses and remedies, before considering whether any broader reforms are necessary”. This suggests that upon concluding the Consultation, the Government may propose further reforms to judicial review and public law matters.

Previous related blog posts

https://hsfnotes.com/publiclaw/2020/08/03/government-launches-panel-to-consider-the-judicial-review-process/

https://hsfnotes.com/publiclaw/2020/09/08/governments-terms-of-reference-for-review-of-the-judicial-review-process/

https://hsfnotes.com/publiclaw/2020/10/27/hsf-responds-to-the-call-for-evidence-for-the-governments-independent-review-of-administrative-law/

 

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Climate change and the role of regulators

In November 2020, the government announced an ambitious ten-point plan to boost green jobs and reach net-zero. The plan was a recent recognition at a national-level of the pressing need to combat climate change. It addresses an expansive set of topics: from offshore wind to walking and cycling; from carbon capture to finance. The proposals suggest regulatory changes in respect of nuclear power, buildings and finance form part of the plan.

The Climate Change Committee expects that businesses will be the primary drivers of the net-zero emissions target and provide the majority of investment required for the green transition. Therefore, any new regulations and regulatory action in this area must take into account the reality for businesses and consumers. This will provide the most effective means of switching to low-carbon solutions in circumstances where businesses are expected to be significant contributors to reach net-zero.

We have prepared a paper focusing on the extent to which regulators are currently obliged to take into account climate change policy when making decisions to better inform businesses of the direction of travel in this area. We provide an overview of the general legislative landscape in respect of climate change, considering whether and how regulators are impacted by that high-level legislation. We then consider the variety of tools that regulators are using in respect of climate change in the energy, transport, finance and construction sectors.

Please click here to read our paper on these issues.

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Independent Human Rights Act Review launches a public call for evidence

On 13 January 2021, the Independent Human Rights Act Review (the “IHRAR“) published a call for evidence. The IHRAR is a panel of experts appointed by the Government to consider whether there is a need to reform the Human Rights Act (“HRA“) “to ensure it continues to meet the needs of the society it serves”.

The call for evidence is structured to cover two broad themes:

  • The relationship between domestic courts and the European Court of Human Rights (the “ECtHR“) in the context of section 2 of the HRA. Pursuant to section 2, domestic courts and tribunals are required to “take into account” the case law of the ECtHR, albeit they are not bound by that case law under the usual rules of precedent. The Review will consider how section 2 has been operating and whether there is any need for reform.
  • The impact of the HRA on the relationship between the judiciary, the executive and the legislature. In particular, the IHRAR will consider the way the HRA balances those roles, including whether the current approach risks “over-judicialising” public administration and draws domestic courts unduly into questions of policy.

The specific questions on which the IHRAR has invited responses are listed in its terms of reference. See this blog post for further details of the terms of reference and the formation of the IHRAR. The call for evidence closes on 3 March 2021.

Sir Peter Gross, the Chair of the IHRAR, stated upon publication of the call for evidence that the ’review proceeds on the basis that the UK will remain a signatory to’ the European Convention on Human Rights.

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Government launches independent review of the Human Rights Act 1998

The Government has announced that a panel of experts led by former Court of Appeal Judge, Sir Peter Gross, will conduct an Independent Human Rights Act Review (the “IHRAR”). The Human Rights Act 1998 (the “HRA”) incorporates the fundamental rights and freedoms set out in the European Convention on Human Rights (the “Convention”) into domestic British law. The purpose of the review is to consider whether there is a need to reform the HRA. The Panel will take “a fresh look at the [HRA] – how it operates and protects human rights – to ensure it continues to meet the needs of the society it serves”.

Context

The 2019 Conservative Manifesto was not the first Conservative manifesto to make reference to the HRA. The 2017 Conservative Manifesto committed to “consider” the human rights legal framework after Britain had left the European Union, whereas the 2015 Conservative Manifesto promised to “scrap” the HRA, introduce a Bill of Rights and “curtail” the role of the European Court of Human Rights (the “ECtHR”). Therefore, it was foreseeable that a prospective Conservative government in 2019 would also make a commitment in respect of the human rights framework. The 2019 Conservative Manifesto promised to “update” the HRA.

Terms of Reference

The Terms of Reference of the IHRAR refer to the United Kingdom’s contribution to human rights law, which it states is founded in the common law tradition and continued with the drafting of the Convention. Citing the impact which the HRA has had on relations between the judiciary, the legislature and the executive and the “perception” that, under the HRA, the courts have increasingly been presented with questions of policy as well as law, the Government considers that it is timely to review the operation of the HRA.

There are two overarching themes that the IHRAR will consider:

  1. The relationship between the domestic courts and the ECtHR: Domestic courts and tribunals are not bound by the jurisprudence of the ECtHR. However, pursuant to section 2 of the HRA, in so far as relevant, domestic courts and tribunals must “take into account” that jurisprudence when determining a question that has arisen in connection with a Convention right. The Panel will consider (among other questions):
    1. How the duty under section 2 has been applied in practice?
    2. How have domestic courts and tribunals dealt with issues falling within the margin of appreciation? When applied, this legal doctrine gives a public authority a degree of discretion when making decisions.
    3. Does the current approach to ‘judicial dialogue’ between domestic courts and the ECtHR satisfactorily allow domestic courts to raise concerns as to the application of ECtHR jurisprudence, having regard to the circumstances of the United Kingdom?
  2. The impact of the HRA on the relationship between the judiciary, the executive and the legislature: The Panel will consider whether the HRA balances those roles, including whether there is “over-judicialising” of public administration, drawing domestic courts unduly into questions of policy. By way of illustration, these are examples of questions that the Panel will consider:
    1. Section 3 of the HRA requires the courts to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights. Should any changes be made to this framework?
    2. Should any change be made to the framework of the section 4 HRA duty i.e. that if the court is satisfied that a provision is incompatible with a Convention right, it may make a declaration of that incompatibility?
    3. How have courts and tribunals dealt with provisions of subordinate legislation that are incompatible with the HRA Convention rights?
    4. In what circumstances does the HRA apply to acts of public authorities taking place outside the territory of the United Kingdom?
    5. Section 10 of and Schedule 2 of the HRA provide ministers with the power to make remedial orders, i.e. to amend legislation that has been found incompatible with the Convention. Should this be modified, for example by enhancing the role of Parliament?

The IHRAR will not consider potential changes to the operation of the Convention or the ECtHR, which are not within the scope of this Review.

Next steps

The Panel is expected to report its recommendations in Summer 2021, after which the Government will respond to the report.

A further point to note is that the 2019 Conservative Manifesto also promised to review the constitution and administrative law, including the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; access to justice and judicial review. The 2019 Conservative Manifesto undertook to establish a Constitution, Democracy and Rights Commission to consider these issues, as well as the HRA, in depth.

On 31 July 2020, the Government established the Independent Review of Administrative Law (the “IRAL”) to consider options for reform to judicial review. In its latest announcement the Government has stated that the IRAL and the IHRAR, together with other workstreams which will be announced in due course, will deliver the Commission on Constitution, Democracy and Rights. Therefore, it is likely that we will see further reviews taking place to address remaining constitutional issues referred to in the 2019 Manifesto.

To read more about the IRAL, please see the following blog posts:

 

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Parliamentary Committee considers remit of the proposed Constitution, Democracy and Rights Commission

The House of Commons’ Public Administration and Constitutional Affairs Committee (the “PACAC”) is conducting a Call for Evidence as part of its inquiry (the “Inquiry”) in relation to the commitment in the 2019 Conservative Party manifesto (at page 48) that the Government would establish a Constitution, Democracy and Rights Commission (the “Commission”).

Background

According to the manifesto commitment, the Commission’s purpose would be to make proposals “to restore trust in our institutions and in how our democracy operates”. The manifesto stated that the role of the Commission would be to examine: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. It appears the intention was that the Commission would also “update” the Human Rights Act and administrative law, as well as ensure that judicial review is “available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.

The Government subsequently announced that it had appointed a panel of experts to examine whether there is a need to reform the judicial review process and there was a Call for Evidence by the Government’s Independent Review of Administrative Law (the “IRAL”; see Public Law Notes updates of 3 August 2020 and 27 October 2020). As regards the remaining commitments, the Government has made no announcements about the form or timing of the Commission except in the Queen’s Speech.

The Call for Evidence seeks submissions on the form which the Commission should take, its main purpose and output, and any particular issues which should be a priority for the Government. This Call for Evidence gives members of the public the opportunity to have their say and influence the findings of the Inquiry.

Evidence to the Inquiry

Oral evidence has been given to the Inquiry by a number of individuals including Lord Sumption, former Justice of the Supreme Court, and academics.

The focus of the oral evidence given so far has been on what should be the priorities for the Commission. The suggestions covered a broad array of topics including (among others):

  • The context of the reforms that the Commission would consider in that Brexit is “affecting the relationships between the different institutions in the Constitution” in any case and so it may be sensible to consider significant constitutional issues at this juncture;
  • The opportunity to “rebuild public trust” in the institutions following the divisive Brexit debates;
  • The electoral system;
  • The House of Commons’ ability to control the legislative agenda;
  • The implications of the Human Rights Act 1998;
  • The separation of powers;
  • The role of the public and how the public might be engaged with the Commission;
  • Whether the Government is approaching the issues which the Commission will consider with an open mind.

The PACAC has not yet stated when the findings of the Inquiry will be published.

Selecting a tactical or strategic approach to constitutional reform

The New Labour Government’s constitutional reform programme in the 1990’s and 2000’s took what some have described as a “piecemeal” approach as it introduced devolution, enacted the Human Rights Act 1998; established a freedom of information regime and reformed the House of Lords. Given the pressure of COVID-19, the Government may find that it does not now have the time to consider constitutional reforms in the round. Therefore, there is a real possibility that this Government could replicate New Labour’s approach, by thinking about issues tactically and thus leaving some dissatisfied.

Evidence given to the Inquiry by Professor Russell, Director of the Constitution Unit at University College London, suggested that there has been a “sort of scattergun” approach by Government, including proposals such as moving the House of Lords to York; abolishing certain regulators or weakening their powers; and establishment of the IRAL. Further, there have been reports over the weekend that the Government is backing plans to reform the Supreme Court by reducing the number of Justices and renaming the institution. Lord Lisvane, a Member of the Constitutional Reform Group Steering Committee, has also suggested that the overlap between the Commission and the IRAL is “a recipe for unconstructive confusion”.

Lord Lisvane has rightly pointed out to the Inquiry the potential scale of the Commission’s remit:

The daunting thing about what is proposed is the sheer size of the canvas. As soon as you start unpacking the individual elements they expand further. For example, how do you do Government and Parliament relations without looking at the devolution settlements? How do you do access to justice for—in the condescending phrase—ordinary people without looking at the structure and resourcing of the justice system and legal aid? As soon as you start looking in more detail, the sheer size of the task starts to increase. I think that that is going to be a major challenge…

The Call for Evidence closes on 16 November. It will be interesting to see how the Committee’s findings fit with the remit of and any recommendations made by IRAL, which is due to report back later this year.

Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
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Of Counsel
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Shameem Ahmad
Shameem Ahmad
Associate
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HSF responds to the Call for Evidence for the Government’s Independent Review of Administrative Law

Herbert Smith Freehills’ public law team has responded to the Government’s Call for Evidence for the Independent Review of Administrative Law (“IRAL”) which was announced on 31 July 2020. In a previous blog post, we discussed the Government’s publication of the IRAL’s Terms of Reference.

The Call for Evidence

The Call for Evidence invited submissions on how well or effectively judicial review currently balances, on the one hand, the legitimate interest in citizens being able to challenge the lawfulness of executive action with, on the other, the role of the executive in carrying on the business of government. One of the overriding concerns was whether procedural reforms to judicial review are necessary to “streamline the process” of judicial review.

The questions put forward in the Call for Evidence focused on a number of issues most of which were alluded to in the Terms of Reference, including whether:

  • the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute;
  • the legal principle of non-justiciability requires clarification;
  • the current rules are too lenient on unsuccessful parties or applied too leniently by the courts;
  • the costs of judicial review are proportionate;
  • the remedies available are too inflexible;
  • settlement is commonplace;
  • ADR is suitable to judicial review and should play more of a role; and
  • the rules of public interest standing are too lenient.

Our Response

In our response, we put forward the view that the current mechanism for judicial review and wider administrative law functions well and is not in any urgent need of major reform. The key objective behind judicial review is and always has been to ensure that government departments and public bodies are able to properly and effectively discharge their functions, according to the law.

In this vein, we believe that there is no need to place the substantive law of judicial review on a statutory footing nor is there a need to change the current law on justiciability. Neither of these initiatives are likely to promote clarity and accessibility in the law, nor increase public trust and confidence in the judicial review process.

From a procedural standpoint, we noted the 2012 – 2013 Government consultation on proposals for reform of judicial review which led to a number of procedural changes aimed at reducing the number of judicial review claims brought by filtering out unmeritorious claims and reducing delays. The general direction of reform of judicial review in previous years therefore appears to have been to seek to make claims harder from a procedural perspective. We do not believe there is any need for further reform along these lines. Indeed, further reform would risk tipping the balance of the judicial review system such that claimants’ ability to properly seek review of public bodies’ decisions is curtailed unduly, giving rise to serious concerns over access to justice.

On the detail of particular procedural suggestions, we consider that the need for proper compliance with the pre-action protocol should continue to be emphasised by the courts in order to minimise the need to proceed with judicial review. To this end, we are reluctant to see any shortening of the time limits for filing claims which would inevitably impact the ability to fully engage in the pre-action process.

By contrast, we do not think that formal methods of ADR or settlement are generally suitable to many of the situations which our clients face in the context of judicial review. Nor are further reforms to the current test for standing, the arsenal of remedies available to the courts or the costs regime necessary.

Although the Terms of Reference queried whether reform is needed in relation to the duty of candour, the Call for Evidence did not specifically address this issue. We nonetheless considered in our response that limiting or restricting the current rules on the duty of candour would not benefit the parties to judicial review.

Lastly, we noted that one specific area which may benefit from consideration and clarification is the position on expert evidence within judicial review.

Conclusion

The Government’s Call for Evidence provided an opportunity for practitioners, observers, commentators and litigants alike to share their experience of judicial reviews with the IRAL panel but, given the fundamental importance of many of the issues, we emphasised that any concrete proposals should be subject to a fair consultation including with those who would be directly impacted by such reform and those who would be able to offer views based on their experience of practising in the area. The scope of the questions and the importance of the issues touched upon highlight the potential for any reform to have long-term and far-reaching consequences for the accountability of public sector decision making and ultimately the rule of law.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Policy Matters: An introduction to Public Inquiries

The Administrative and Public Law team hosted a Policy Matters webinar on public inquiries on Thursday 10 September 2020. Hosted by Associate Sahil Kher, the webinar featured insights from Andrew Lidbetter (the head of HSF’s Administrative and Public Law practice in London) and Nusrat Zar, who is also a partner in the team. Andrew and Nusrat both have considerable expertise of advising clients involved in public inquiries and select committee inquiries.

Some of the key issues covered on the webinar included:

  • The common features of different types of inquiries;
  • What it means to be a participant in an Inquiry;
  • Practical and commercial considerations including how a participant can deal with any potential criticism; and
  • The prospect of an inquiry into the UK Government’s handling of the COVID-19 crisis, and the wide range of commercial organisations who may be involved.

A recorded version of this webinar is now available here.

If you have any questions, please do not hesitate to get in touch with any of the contacts listed below.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6440