Lawyers have reacted with concern - if not necessarily surprise - that the government has chosen to go further than the modest reforms proposed by its own handpicked advisers for reforming judicial review.
The government today published the Independent Review of Administrative Law’s 195-page report and its response in a Judicial Review Reforms document.
The panel, which was chaired by Lord Faulks QC, tells the government in its report ‘to think long and hard’ before seeking to curtail the judiciary’s powers. ‘Our view is that the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.’
However, lord chancellor Robert Buckland told the Commons that the panel’s recommendations were an excellent starting point ‘but the government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process’.
Initial reactions emerged this afternoon as the profession digested the contents of the review's report and government's response.
Former Government Legal Department chief Sir Jonathan Jones, now a senior consultant at Linklaters, said: ‘The review doesn’t bear out the suggestion that there has been significant judicial overreach or a surge of cases in recent years, or that large numbers of unmeritorious cases are being allowed to proceed. In the main its recommendations are relatively modest. They certainly don’t involve a major overhaul of judicial review.’
Jones welcomed the opportunity for further consultation but he said the government’s additional proposals will need careful thought. He said: ‘The proposal that remedies might be available only prospectively will, at least, have to allow for exceptions in order to avoid the risk of serious injustice to claimants who have already suffered loss or damage. The proposals on ouster clauses (excluding the courts from examining certain types of decision) will also need to be looked at carefully: this may be fair enough where there is already scope for some form of judicial consideration, but the courts tend to find a way around provisions which seek to exclude judicial scrutiny altogether.’
Jo Hickman, director of Public Law Project, a strategic litigation group, said: ‘Reforms that affect the carefully balanced system for judicial review could make it harder for people to hold governments to account and should not be undertaken lightly. The stakes are high and the evidence threshold for change should reflect that.
‘It is striking that the overwhelming majority of respondents to the IRAL’s call for evidence support either no or only gradual reform. It is also clear that the panel’s recommendations were relatively modest, having gone to great lengths to weigh up a huge volume of evidence, including from 14 government departments.’
Bar Council chair Derek Sweeting QC pointed out that the number of judicial reviews in all areas has fallen over recent years. ‘Outcomes show that across the board, of those cases which proceeded to a substantive hearing, the success rate for claimants between 2014 and 2019 ranged from 39% to 44%, and the reality is that the judicial review process already includes safeguards, including a filter mechanism to ensure that cases which lack merit do not proceed,’ he said.
Solicitor Daniel Machover, head of civil litigation at Hickman & Rose, said the independent review’s report ‘largely reflects that it was asked to fix a problem that doesn’t exist’.
He added: ‘The review has exposed as false the government’s argument that judicial review is being misused for political ends. But the government appears unwilling to give up. The public consultation it now proposes will examine issues which the review has already examined, but decided – presumably for very good reasons - to make no recommendation on.
‘The suggestion that the Civil Procure Rules Committee should potentially consider restricting who can bring judicial review proceedings, be it individuals, or public-spirited organisations on their behalf, to challenge in court the unlawful actions of the state is extremely concerning, given that this is a crucial characteristic of any properly functioning democracy and should be welcomed by government bodies.’
Legal Twitter reacts
First impressions of the review of judicial review: Faulks has recommended minor changes which the government accepts. Government wants to push ahead and consult on much broader reforms that Faulks did not support.— Joshua Rozenberg (@JoshuaRozenberg) March 18, 2021
But I haven’t had a chance to read this: https://t.co/lG2FckLtkI
If you wanted to limit access to JR perhaps you could have a sort of preliminary stage where a judge considers whether it’s arguable and whether the claimant has a real interest and only let the JR progress if the judge gives permission.— Seán Jones (@seanjonesqc) March 18, 2021
Have read the conclusions - this really isn't the denouncement of judicial review the government was hoping for (which is good). This is the closing shot, which I pointed and not towards the judiciary... https://t.co/rv7ekKG2J5pic.twitter.com/emntkkTyBD— Adam Wagner (@AdamWagner1) March 18, 2021