There are just 10 days left to tell the government what you think of its plans to reform judicial review. But don’t worry if you miss the deadline.
First of all, the government has come under pressure to extend it. Secondly, any legislative reforms will probably have to wait until a separate review of the Human Rights Act reports in the autumn. Thirdly, the government has largely made up its mind. And, fourthly, its plans have already been comprehensively shredded by the leading academic in this field, Professor Mark Elliott.
Elliott says the government is proposing that the vast majority of unlawful administrative acts should either not be reviewable at all or subject to an attenuated remedial regime
New readers may welcome a brief recap. Last July, the lord chancellor Robert Buckland appointed Lord Faulks, a former Conservative justice minister, to lead an independent review of administrative law. His report was delivered to the government in January and published last month.
Faulks had been given a well-balanced panel to work with and the only reforms on which it could agree were relatively measured. But that didn’t fit the government’s narrative. Buckland told MPs that Faulks had found ‘a growing willingness to accept an expansion of the remit of judicial review’. Was that right?
‘No, I don’t think it really was our finding,’ Faulks told me. There were ‘one or two cases’ but they did not amount to an overall trend.
And were courts ‘moving beyond the remit of judicial review’ and ‘considering the merits of government decisions themselves’, as the Ministry of Justice had claimed? No, Faulks added, that was not a fair summary of what his panel had said either.
Buckland gladly accepted Faulks’s two substantive recommendations. One was to limit the availability of judicial review in immigration and asylum cases. It’s widely accepted that parliament never intended to give applicants two bites of the cherry – though Faulks based his argument on an unfortunate statistical error.
Faulks’s second recommendation was that judges should have the discretion to suspend quashing orders – in effect, giving ministers a few weeks to put things right.
But Buckland went much further than that. He considered it ‘worthwhile to consult on measures that were not recommended by the panel but would complement their main proposals’. These are the proposals that have come in for such criticism from Elliott, whose prize-winning PhD thesis was on the constitutional foundations of judicial review and who is now professor of public law at Cambridge and chair of the law faculty.
Let’s look at how these proposals might work. In 2013, Buckland’s predecessor Chris Grayling increased employment tribunal fees from nil to £1,200. In 2017, the Supreme Court (pictured) found this ‘effectively prevents access to justice and is therefore unlawful’. So the government made costly arrangements to refund the fees paid by applicants.
Now the government is considering giving judges the discretion to make a remedy prospective-only. That would have allowed the justices to rule that applicants would not have to pay fees in future but those who had paid already would not get any money back.
In fact, the Supreme Court would probably have ordered refunds. So the government is considering either a presumption that remedies relating to statutory instruments will be prospective-only or even a requirement that remedies in such cases should be prospective-only unless there is an exceptional public interest requiring a different approach.
Elliott is rightly apoplectic. ‘As if these proposals, which risk eviscerating judicial review, were not objectionable enough,’ he writes, ‘the government then proceeds to argue that all of this is to be done in the service of the rule of law’. The Ministry of Justice claims that ‘legal certainty, and hence the rule of law, may be best served by only prospectively invalidating such provisions’.
But applicants would still be denied access to justice. As Elliott says, the requirement of government under law, another critical component of the rule of law, ‘would be placed in serious jeopardy by preventing or improperly limiting retrospective invalidation of unlawful administrative acts’.
More broadly, Faulks had said the government would need to produce ‘highly cogent reasons’ if it wanted to oust, or limit, judicial review. But that’s just what the government is now proposing. Worried that the courts have a habit of getting round ouster clauses, it seeks advice on how to make these more effective.
Summing up, Elliott says the government is proposing that the vast majority of unlawful administrative acts should either not be reviewable at all or subject to an attenuated remedial regime. He hopes that the ‘undesirability of the suggested reforms is as obvious as the government’s naked self-interest in proposing them’.
Not to the Ministry of Justice, it seems. Policymakers should change the way they view the role of judicial review, the Institute for Government advised in a well-sourced report last week. ‘Public law can improve public policy,’ it said, ‘and better policy is more likely to be lawful.’