The independent panel probing judicial review at the request of the government should not place too much weight on the ‘exceptional’ Article 50 cases, public law specialists have said.
Although the cases, concerning Brexit and prerogative powers, ‘generated understandable and political excitement’, the Public Law Project group said they do not represent the reality of judicial review in practice.
The PLP was responding to the Independent Review of Administrative Law’s call for evidence.
The group says in its 45-page response that prerogative powers rarely feature in judicial review litigation more generally and fewer than 10 cases decided over the last eight years could reasonably be said to concern a challenge to the operation of such powers.
PLP highlighted the link between judicial review and good governance, pointing out that the High Court overturned the Parole Board’s decision to release a serial sex offender from his indeterminate prison sentence in 2018.
The overall number of judicial review applications are low and many disputes are resolved at the pre-action stage. The existing judicial review process is also good at filtering out unmeritorious cases.
PLP, which convened an expert group to discuss the review, highlighted six areas for ‘positive reform’, including strengthening the statutory duty of candour. ‘If public bodies complied with their duty of candour, it would enable both parties to make fully informed decisions about whether to proceed with litigation. This would likely save public authorities time and money in defending claims, and potentially reduce the need to provide extensive disclosure’, its response said.
The response also highlighted crowdfunding concerns: ‘PLP considers that further research is required to establish whether the absence of regulation of crowdfunding for judicial review leads to unmeritorious but “popular” claims being pursued, creating unnecessary costs for public authorities.’
The call for evidence will close at 5pm on 26 October after the deadline to submit evidence was extended. The panel, chaired by former Tory justice minister Lord Faulks, is expected to report to the government by the end of the year.