The government-commissioned independent review of administrative law is based on a false premise and faces an impossible logistical challenge, according to a high profile public law specialist firm. In its submission to the review, chaired by Lord Faulks QC, London firm Bindmans describes the starting point of the exercise as ‘highly problematic’.
In particular, Bindmans challenges ’the false premise’ that there is a conflict between citizens’ interests in being able to challenge the lawfulness of executive action and the ability to carry on the business of government. ’Once the proper role of judicial review is understood, there is no ”balance” to be struck between the existence and availability of judicial review and effective government because, to be genuinely effective in a democracy, government must act lawfully and be accountable through the courts if it is not.’
The response also contests the government’s assertion that over the past 40 years the focus of judicial review has shifted from the existence of government powers to the manner of their exercise. The firm’s 31-page submission is illustrated with summaries of 30 JR cases, including the Miller 1 challenge to the triggering of Article 50 of the Treaty of European Union.
On a more immediate note, Bindmans commends the review panel’s decision to take an ’evidence-based approach’ - but says it has been given ’hardly any time and resources to gather and analyse evidence'. This is in contrast to what the firm says are eight previous reviews, each of which, after considering the evidence for months and years, failed to recommend radical changes.
Overall, it concludes: 'If endorsement of Lord Justice Jackson’s recommendations on costs and some streamlining can come out of the review, it will be worthwhile. Going further, however, is unwarranted.’
John Halford, joint head of public law at Bindmans, said: ’The process, scope and cost of judicial review have been reviewed in detail eight times over the last three decades, including by the government itself just six years ago. None of these reviews found evidence that radical reform was needed. On the contrary, judicial review claims impact on a tiny proportion of administrative decisions and that impact is overall positive, with most cases being positively settled or won.
’Judicial review is a vital part of our legal system because it helps ensure that public bodies exercise the power entrusted to them lawfully – and so are subject to the law just like citizens. The review panel should take great care not to undermine this. We urge them to be constitutional conservationists, not iconoclasts.’
The review panel's call for evidence closed on Monday, after a week-long extension. It is expected to report to the lord chancellor by the end of the year.