A government-commissioned independent probe is asking civil servants if judicial review affects their ability to do their job properly.
The secretariat for the Independent Review of Administrative Law, provided by the Ministry of Justice, yesterday published a call for evidence document that was sent out to more than 200 people on Monday including parliamentarians and professional bodies.
The document contains questions specifically for government departments. It asks: ‘In your experience, and making full allowance for the importance of maintaining the rule of law, do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local government functions?’
The 11-strong list of factors includes judicial review for procedural impropriety such as failure to consult, judicial review for disappointing someone’s legitimate expectations, rules on who can apply for judicial review, and time limits.
Civil servants are asked if the prospects of being judicially reviewed improve their decision-making ability: ‘If it does not, does it result in compromises which reduce the effectiveness of decisions? How do the costs (actual or potential) of judicial review impact decisions?’
The document says responses will feed into a final report but confidentiality cannot be assured. It highlights a statutory code of practice under the Freedom of Information Act with which public authorities must comply.
‘In view of this, it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Ministry [of Justice],’ the document says.
Elsewhere, the call for evidence asks questions on codification and clarity, and process and procedure, such as whether certain decisions should be excluded from judicial review. The panel is particularly interested in notable judicial review trends over the last 30-40 years and also seeks evidence on how effective court rulings are in resolving issues raised by judicial review.
An expert group set up by Public Law Project will today hold the first of three roundtables to discuss the review’s agenda.
Dr Joe Tomlinson, PLP research director, said: ‘It is right that the panel has again emphasised the importance of evidence-based policy making in its call for evidence. The challenge that will face both the panel and those who are responding to the call for evidence - aside from the short timescale set - is that in many areas of its enquiry the evidence is highly complex, and in some areas it does not currently exist. There needs to be strategy in place to fill those evidence gaps before evidence-based policy recommendations can be made.’
The call for evidence closes at midday on 19 October.