Government launches renewed consultation on the future of judicial review

Following a call for evidence in the early autumn, which CMS responded to, accessible here, the Independent Review of Administrative Law Panel (the “Panel”) on 18 March 2021 published its review report (the “Report”) which can be found here. The Report makes two recommendations for substantive changes to judicial review, as well as a number of recommendations and observations on potential procedural changes to judicial review:

1. The introduction of suspended quashing orders; and
2. The reversal of the Supreme Court decision in R (Cart) v Upper Tribunal [2012] 1 AC 663 (“Cart”) (allowing exceptions to appeal decisions of the Upper Tribunal).

On the same day, the Government published its response to the Report (the “Response”) which can be found here, and launched a ‘follow-up’ consultation of short duration (due to close on 29 April 2021) to address an even broader range of issues than the call for evidence that IRAL was tasked with last year.

The Independent Review of Administrative Law (IRAL)’s Terms of Reference

On 31 July 2020, the IRAL was established to examine trends in judicial review and consider options for reform. The Terms of Reference included consideration of whether:

1. the amenability of public law decisions to judicial review and the grounds of illegality should be codified in statute;
2. to define when and on what grounds courts should find public law decisions unlawful, and the remedies that should be available; and
3. judicial review processes should be ‘streamlined’ to reduce the burden on the Government, for example, limiting who may have standing to bring a claim, the public authority’s duty of candour obligations and the time limits on bringing a claim.

The establishment of the IRAL under these Terms of Reference had followed the Conservative Party’s 2019 election manifesto, which included proposals to overhaul judicial review and launch a commission to examine constitutional issues. These proposals, the establishment of the IRAL and its call for evidence, were in the aftermath of the two successful challenges of the Government brought by way of judicial review by Gina Miller (concerning the need for a Parliamentary vote for Brexit and the prorogation of Parliament) have drawn much criticism in the media and from relevant public and professional bodies. Such criticism centred on the perceived agenda of this Government to narrow and constrict the availability of judicial review as a critical means of holding public authorities to account for unlawful exercises of power.

The Panel’s Report and recommendations

Notably, the Panel did not find that there was a pattern or trend of judicial reviews straying into consideration of the merits rather than the lawfulness of public decision-making (albeit the Response appears to interpret this differently). The Panel advised against a wholesale codification of the grounds for judicial review. In terms of its positive recommendations for change, taking each of them in turn:

First Recommendation: Introducing Suspended Quashing Orders

Courts can currently grant quashing orders, setting aside the public decision under challenge. The Panel’s recommendation is to (in addition) introduce suspended quashing orders, which would allow a court to grant an order setting out certain conditions which, if not met, would lead to the public authority’s decision being quashed from the date specified in the order. Alternatively, if the conditions can be met, then the decision will not be quashed. The Panel envisages such orders being used, for example, to specify conditions that require Parliament to pass legislation to make the unlawful exercise of power lawful. The court’s order may also indicate (even if only in very general terms) what the legislation would have to provide for in order to meet the conditions and successfully ratify the relevant power.

IRAL considers the courts should have a discretion to grant suspended quashing orders “in appropriate cases”, to be decided on a case by case basis. If the courts were to grant such orders, we can expect them to do so cautiously, in particular to ensure that the condition is clearly expressed to avoid the need for subsequent satellite litigation regarding whether it has in fact been met.

Second Recommendation: Reversal of the Supreme Court decision in Cart

Section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 provides that decisions of the Upper Tribunal on applications for permission to appeal may not be further appealed. In Cart, the Supreme Court held that decisions of the Upper Tribunal to refuse permission to appeal a decision of a First Tier Tribunal may be appealable, if the decision of the First Tier Tribunal was affected by an error of law.

The Panel considers that Cart creates an exception to section 13(8)(c) that requires correction. The Panel formed the view that, based on its analysis of recent cases, applications made under the Cart exceptions rarely led to errors of law of the First Tier Tribunal being detected and corrected. The Panel’s recommendation is to legislate to reverse the effect of Cart.

Recommended procedural changes

The Report considers five important areas of procedure and potential amendments:

1. Standing: The Panel acknowledges that the Government can legislate to clarify or limit the circumstances when a potential claimant has ‘standing’ to bring a judicial review but recommends that “the temptation to legislate should be resisted”. Instead, the Panel suggests that:
   1. government bodies could do more to challenge the standing of claimants in cases; and
   2. courts expressly address the issue of standing in proceedings, whether or not that is an issue raised by the parties.
2. Interveners: The Panel considers that an increase in third party interventions is the product of unfettered judicial discretion or reflects how judicial reviews can be hijacked for political reasons (for example, by lobbyists). The Panel considers there is a lack of judicial guidance around interventions and recommends that criteria for permitting interventions should be developed and published.
3. Duty of candour: The Panel considers that there is a need to clarify the scope of the duty of candour obligations and recommends that guidance be provided for further clarity. However, the Panel did not suggest any specific changes and noted that there was disagreement between the members of the Panel, for example, whether or when the duty will extend to disclosure of documents and not just information.
4. Time limits on bringing a judicial review challenge: The Panel stated it could not clearly identify any improvements to be made on this point. However, it emphasised that it:
   1. was not in favour of reducing the current time limits; and
   2. may be attracted to following Northern Ireland in abandoning the requirement to bring a judicial review claim “promptly”.
5. Replies to acknowledgements of service: The Panel recommends the Civil Procedure Rules make formal provision for a Reply to be filed within 7 days of receipt of the acknowledgement of service.

The Response and call for further consultation

The Government simultaneously issued its Response on 18 March 2021. The Government expressed agreement with the Panel’s recommendations and reasoning and has said it will legislate or ask the Civil Procedure Rule Committee (the “CPRC”) to consider implementing each of the recommendations. It appears the Government also agrees tacitly to abide by the Panel’s recommendation to refrain from legislating on standing.

However, by launching a further consultation, the Government’s response makes a proposal for further procedural reform to be considered by the CPRC, including a potential extension to the time limit within which to bring a judicial review in order to encourage pre-action settlement, or enabling parties to agree an extension of the time limits, and other areas of reform to be explored which include legislating:

• to clarify the effect of statutory ouster clauses;
• to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis;
• that, for challenges of Statutory Instruments, there is a presumption, or a mandatory requirement for any remedy to be prospective only;
• for suspending quashing orders to be presumed or required rather than quashing orders; and
• on the principles which lead to a decision being a nullity by operation of law.

Comment

The Report does not appear to unduly narrow the scope for judicial review or water down the procedural elements so as to undermine the effectiveness of the judicial review regime, as was feared or anticipated. Rather, the Report promotes the importance of judicial review, and the need for it to be accessible including for its rules and processes to be coherent and consistent. The Panel has taken a measured approach to judicial review and any potential reform, and has acknowledged issues that were contentious and identified areas where it could not offer views or recommendations without further consideration, study or consultation.

The Government’s Response and further consultation with limited time to respond appears to belie a strong commitment to follow through with the proposals around reform of judicial review in its 2019 manifesto. The questions to be addressed in the consultation suggest a move towards codifying aspects of judicial review which would likely make the ambit of judicial review more rigid for practitioners and courts. Claimants may find they face more hurdles should some of the questions for consultation come into effect; for example, a presumption on the grant of a suspended quashing order threatens to place a greater burden on ‘successful’ claimants to displace that presumption should they consider it an inadequate or inappropriate remedy. Nevertheless, practical questions, such as the proposal to extend time limits, may be a welcome pragmatic change that could save time and cost for all parties.