On 18 March 2021, the day we had all been waiting for finally arrived. The Lord Chancellor, Robert Buckland QC MP, released the report of the Independent Review of Administrative Law (IRAL) following the panel’s period of consultation and reflection. It is a substantial piece of work at nearly 200 pages and in this post I provide a summary of the panel’s key recommendations and findings. In response to the four major questions asked of the panel, the simple answers are: no statutory codification of judicial review; no statutory reform to justiciability; no statutory reform to the approach of the courts to decision-making; and modest procedural reforms.
However, inevitably, it is more complicated than these headline findings and in this post I want to expose some of that nuance. I will organise my discussion around four themes: proposals for express legislative reform; proposals to change ‘soft law’; recommendations for deeper expert consultation; and pleas to public bodies and the judiciary for changes of attitude, practice, and conduct.
Legislative proposals
Only two recommendations involve express legislative change. The first was that the decision of the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28, should be reversed by Parliament (p.70). In Cart, the Supreme Court decided that the decisions of the Upper Tribunal to refuse to grant permission to appeal against a decision of the First-tier Tribunal could be amenable to judicial review in the Administrative Court where that decision was possibly affected by an error of law. The panel carried out a statistical analysis of Cart-type judicial reviews and found that they were the single largest category of applications to the Administrative Court between 2015-2019.
According to the panel, out of 5502 such applications, 12 were successful. Therefore, the panel concluded that the expenditure of judicial resources could no longer justify this category of judicial review (pp.66-70). This proposal will not be uncontroversial. Indeed, during the call-for-evidence period, I was involved in a number of events where practitioners highlighted the real need for Cart judicial reviews to correct serious public law errors made in the tribunals system. Moreover, numerous practitioners have now questioned the accuracy of these statistics, indicating the importance of more robust empirical backing for conclusions.
The second legislative proposal was that the decision of the Supreme Court in Ahmed v HM Treasury (No 2) [2010] UKSC 5, should be reversed so that courts have the option of suspending quashing orders in particular situations. The panel believed this would provide time and flexibility for public bodies to produce workable solutions to quashing orders instead of being compelled to act in haste (pp.70-71). In addition, the panel considered that this would be beneficial for claimants. Courts are frequently cautious about issuing quashing orders due to the potentially severe consequences on the public body. According to the panel, the option of suspension would make courts less reticent (p.71).
Changes to soft law
The first recommendation for changes to soft law was a suggestion that the “Guidance for the Administrative Court” should include criteria on when a court should permit interveners (pp.96-97). The panel was concerned with apparently increasing numbers of interveners who may add nothing useful to a case and simply replicate the arguments of the parties. The panel was also concerned that this area had been developed almost entirely by way of judicial discretion, with no precise assistance from Part 54 of the Civil Procedure Rules (p.96).
The second recommendation was that The Treasury Solicitor should develop revised guidance on the duty of candour in judicial review proceedings, including its application to the pre-action stage (p.103). For the panel, the scope of the duty may operate onerously against public bodies, particularly if they are expected to furnish documents at great cost related to public law issues not even raised by the claimant. This was especially so with challenges against policies in abstracto. Moreover, during the pre-action stage, the panel was concerned that claimants regularly sought documents related to official advice to ministers that would not be disclosable via freedom of information requests, and the disclosure of documents that may reveal sensitive details, such as prosecutorial decisions by the Crown Prosecution Service which may refer to witnesses and victims of crime (pp.99-102).
The third recommendation is that the Civil Procedure Rules should make express provision for a right of reply by a claimant to a defendant public body’s acknowledgement of service (‘AOS’) within 7 days (pp.108-109). The AOS sets out the grounds on which a public body contests the judicial review application (p.107) and the approach of the courts had been inconsistent on permitting claimant replies to be made (p.108).
A fourth potential proposal, though not one expressly supported, is the option of abolishing the requirement for “promptitude” in lodging a judicial review application under Part 54 of the Civil Procedure Rules. The panel was not in favour of altering the absolute time limit of 3 months, but the promptitude option was suggested on the basis that it is so rarely invoked that it had limited practical effect (p.107). Though the panel expressed understanding of the view that an extended time limit might encourage greater out-of-court settlements via the Pre-Action Protocol for Judicial Review, the members did not consider that legislation could realistically be drafted to cover this, especially with regard to the need to require parties to seriously attempt to resolve disputes in the pre-action process. In addition, the panel regarded consensual extension of time limits between the parties to be problematic given that it could cause undesirable side-effects for persons affected by the claim but not party to the proceedings (pp.105-106).
Further consultations and expert examination
The panel did not believe that it would be wise for Parliament to reform the grounds of judicial review (p.60). Nor did the panel recommend that Parliament codify the law of justiciability (p.56), or grounds of review (p.32). Partly, this was on the basis that the panel identified no new instances of judicial expansion into previously non-justiciable territory over the last 40 years (pp.42-43) but for the exceptional Brexit cases which the panel regarded as of limited wider significance (p.41). Nevertheless, the panel concluded that it was perfectly lawful for Parliament to legislate to exclude certain decisions from judicial review if Parliament wished to (that is, enact ouster clauses) (p.52), but that these should be done through specific and narrow enactments and not broad legislation (p.55). Despite these findings, the panel did express concern over the principle of legality and the creeping way that common law proportionality was coming to be recognised (pp.64-65). With respect to the latter, this inevitably involved the judicial enumeration of common law constitutional rights which could promote unpredictability and which raises concerns regarding the separation of powers. There is a recommendation that non-judicial expert bodies such as the Law Commission or House of Lords Constitution Committee should look at the issue of common law constitutional rights and the principle of legality with a view to providing guidance to courts (p.66).
The panel was also concerned with the costs regime in judicial review and recommended that there should be a careful study (p.78-79). Similarly, the panel argued that it would be desirable to look at the regulation of crowdfunding for judicial review (p.111).
Pleas for mutual respect and trust
One of the most interesting aspects of the report are where the panel simply issues a plea to courts or public bodies to change their attitudes or conduct, or to bear particular constitutional issues in mind.
For instance, the panel made no suggestions for legislative reform of standing requirements (p.94). However, it recommended that courts and public bodies more strongly deliberate questions of standing. In the view of the panel, there is a difference between associational standing where an organisation more clearly represents a class of persons affected by a decision, and public interest standing that challenges an entire policy on the basis of a single organisation’s view of the public interest (p.94). The panel recommended that public bodies should be encouraged to raise standing issues more often in litigation and that courts should proactively police the issue whether or not it is raised by the parties themselves (p.111).
Another example of this related to judicial overreach and judicial restraint vis-à-vis the grounds of review and justiciability (pp.57-66). Notably, the panel concluded that the best solution to any potential judicial overreach was judicial restraint and not legislative action (p.61). Indeed, the panel’s conclusion effectively reads as a plea to courts to be careful about extending their powers of review into areas ill-suited to their competence (p.61).
The government and parliamentarians received similar pleas for caution and moderation:
While the Panel understands the government’s concern about recent court defeats, the Panel considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally. (p.56).
[T]he 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. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers (p.132).
There were many such pleas to demonstrate mutual trust and respect.
The Ministry of Justice consultation
In light of the panel’s recommendations, the Ministry of Justice has launched a six-week consultation to end on 29 April 2021. The consultation focuses on: whether there should be statutory clarification of the effect of ouster clauses; whether the suspension of quashing orders should be mandatory or discretionary; whether remedies should be prospective-only, particularly in relation to statutory instruments; the circumstances where an unlawful decision can be regarded as a nullity; and further procedural reforms. In many respects, this consultation is more significant and contentious than IRAL’s report, as Lord Anderson of Ipswich noted in The Guardian, Professor Paul Craig has noted via the UKCLA, and Lord Faulks himself has commented to Joshua Rozenberg. I make no comments about it at this stage other than to say that self-evidently public and administrative lawyers will wish to submit reliable evidence and experiences to the consultation and keep a close eye on its eventual findings, particularly any that go far beyond any problems identified by the panel.
Lee Marsons is a PhD candidate and Graduate Teaching Assistant at the School of Law of the University of Essex.
Administrative Law in the Common Law World 