Summary

The Government’s launch of its review of administrative law last week is significant with potentially wide ranging consequences for judicial review.  In this blog we discuss the details of this review and the potential implications. 

Whilst focus will naturally be on the publication of the Government’s much trailered Planning White Paper on 6 August, one thing that should not be overlooked is the Government’s launch of its review of administrative law the week before.  This is a significant review with potentially wide ranging consequences and is the implementation of the Conservatives’ election manifesto pledge to examine the need for judicial review reform. 

Following on from my previous blog concerning that manifesto pledge - see: https://www.bclplaw.com/en-GB/insights/general-election-2019-judicial-review-reform-for-brexit-britain.html - this blog considers the Government’s announcement and what we now know about the review that is to be undertaken and offers some thoughts on the same.

The Panel

In order to examine the issues around judicial review that it identified, the Conservative Manifesto for the last General Election promised a ‘Constitution, Democracy & Rights Commission’ in the Government’s first year.  Whilst that particular moniker seems to have been dropped, what we now have is an independent expert panel to undertake this role. 

The panel is to be chaired by Lord Faulks QC, a previous Minister of State for Civil Justice during the Cameron Government, and its proposed members comprise a mixture of legal practitioners and academics, including planning barrister Celina Colqugoun.  The panel’s role will be to “examine a range of data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is justified”. 

The panel will report back later this year and any recommendations for reform that it puts forward will be considered by the Lord Chancellor (Robert Buckland) and the Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office (Michael Gove).  No overall timescales are provided for the Government’s response but presumably this will be next year.

The Terms of Reference

The Government’s press release was accompanied by the Terms of Reference for the panel’s review, which makes the scope of the review clear.  This identifies 4 particular areas that the review should consider.  These may be summarised in broad terms as follows:

1. Whether judicial review should be codified in statute;
2. Whether certain decisions should be taken out of the ambit of judicial review;
3. Whether the grounds and remedies in judicial review need to be limited; and
4. Whether any procedural reforms are necessary.

In respect to the latter the following aspects are identified:

a)    Disclosure, particularly in relation to policy decisions in Government;

b)    Duty of candour, particularly as it affects Government;

c)    The law on standing;

d)    Time limits for bringing claims;

e)    Relief in judicial review;

f)    Rights of appeal, including the issue of permission to bring JR proceedings; and

g)    Costs and interveners.

Some thoughts

My previous blog asked whether the Conservatives were contemplating fundamental changes to judicial review or something of a more tinkering nature like the previous reforms in 2014. 

Well, this question has been definitively answered by the Government’s launch of the review. In particular the Panel’s Terms of Reference show that the review is not limited to procedural tweaks but is to be a review of the fundamentals of administrative law, the outcome of which could be a complete rewrite of judicial review.  Quite literally in fact given that the first question in the Terms of Reference is about codifying judicial review. 

It would, of course, be premature to jump to any conclusions about where this is all heading.  But the  potential significance of the review should not be underplayed:  The Government appears to be exploring constitutional change that may result in some public decisions being put outside the reach of the Courts, as well as making judicial review generally more difficult/less useful in respect to those decisions that remain subject to it.  Plainly fundamental reforms of this nature would cut across judicial review’s role as a supervisory process to ensure that public decisions are taken lawfully and would  erode one of the key checks and balances on the exercise of public power in the UK Constitution.

The fact that reforms of this nature are even on the menu for the Panel’s review is  significant in itself, but even more so when one considers the wider political context.  Whilst the Government’s press release emphasises the independent and expert composition of the Panel and the fact that it will be undertaking an evidence-based review (although query what that evidence will actually be when the Government’s concern – that judicial review is being abused - is highly subjective?), one cannot escape the fact that it will be the Government who will be determining what reforms are ultimately pursued here.  Questions around the rule of law and constitution aside – and ignoring the fact that the expert panel will be reporting to the very Minister who infamously derided experts during the Brexit referendum campaign - both the background to this review and the Government’s broader political objectives suggest that it will be predisposed to the idea of radical reforming judicial review.

After all, Brexit was very much the context for the Manifesto pledge that this review is fulfilling, notwithstanding that the Government’s press release does not mention the ‘B word’.  (Please see my previous blog in this regard).  But even if the review was not prompted by the Supreme Court’s decisions regarding the lawfulness of the triggering of Article 50 and the prorogation of Parliament, the underlying political drivers appear to be the same as for Brexit – namely the desire for the Government to Take Back Control (this time from members of the public and the Courts rather than the EU?) and to Get Things Done (by removing or limiting the ability to legally challenge the Government’s decisions?).  These same political drivers can also be seen in the proposals for planning reform in the Planning White Paper, if one views those proposed reforms as, broadly speaking, removing powers from local planning authorities and liberating development from planning control.

If this all sounds unduly alarmist or like an academic debate, it should be remembered that we are all presently living in a time where we have unprecedented Government intervention in - and restrictions on - our lives in response to the coronavirus pandemic.  The exercise of public power matters to us all and has real life consequences.  Any move to limit or change the means by which the lawfulness of public decisions may be scrutinised needs to be treated with the utmost caution.  Not least at a time when there is the significant exercise of public powers on the near horizon as part of Brexit and other domestic reforms.