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Judicial Review Reform consultation announced

Date:30 MAR 2021
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The Ministry of Justice has launched a public consultation on judicial review which will address the recommendations of an independent panel of experts led by Lord Faulks QC.

The Independent Review of Administrative Law (‘the Review’) was established on the 31st July 2020 to examine trends in Judicial Review and to deliberate on any recommendations for reform. The Terms of Reference for the Review sought to direct the Panel’s attention to certain key areas: codification, non-justiciability, the grounds of review and remedies, and procedure.

The focus on these areas is reflected in the structure of the Review’s Report (‘the Report’) and the Panel have made convincing recommendations on each area. This Consultation Document is intended to complement the analysis presented throughout the Report. While not all the issues covered in the Report have been taken forward to this consultation, readers are encouraged to read it in its entirety.

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The Independent Review of Administrative Law made two recommendations for change in the substantive law, as well as various recommendations for changes in procedure, as follows:

  • legislating for the introduction of Suspended Quashing Orders
  • legislating to reverse the effect of the Supreme Court decision in Cart and re-affirm that decisions of the Upper Tribunal to refuse permission to appeal are not subject to the supervisory jurisdiction of the High Court
  • changes in procedure to be considered and taken forward by the Civil Procedure Rule Committee (CPRC)
    • removing the requirement for a clam to be issued “promptly”, but retaining the 3-month time limit
    • providing further guidance on intervenors
    • providing for an extra step in the procedure of a Reply, to be filed within seven days of receipt of the Acknowledgement of Service
    • In addition, the Government is considering further reforms which build on the analysis in the Report, and on some of the options the Panel suggested but on which they did not make definite recommendations.

The Government thinks there is merit in exploring the following areas to see whether practical measures could address some of the issues identified in the Report:

  • legislating to clarify the effect of statutory ouster clauses
  • legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis
  • legislating that, for challenges of Statutory Instruments, there is a presumption, or a mandatory requirement for any remedy to be prospective only
  • legislating for suspended quashing orders to be presumed or required
  • legislating on the principles which lead to a decision being a nullity by operation of law
  • making further procedural reforms (which would need to be considered by the CPRC)

The consultation document is split broadly into two parts. The first provides an exposition of the Government’s understanding of the constitution and its aims with regard to Judicial Review, addressing some valuable points raised in the Review’s call for evidence. We hope this provides both clarity as to our intentions and context for our proposals.

The second part of the consultation explores the specific proposals by explaining the rationale in more detail and what each proposal is designed to achieve. This is accompanied by suggestions as to how the proposals may be implemented in fairly high-level terms.

Each proposal is also accompanied by specific consultation questions. We welcome responses on those questions. Submissions which do not focus on the questions, but deal with the subject of Judicial Review more generally, are also welcome.

You will find the consultation document and IRAL report below. A Welsh version of the consultation document and the IRAL report will be published here shortly. On the consultation website you will find those submissions to the IRAL’s Call for Evidence from organisations or individuals which are quoted either in the IRAL report or in the consultation document. Next week the Ministry of Justice will publish the remaining submissions to the Call for Evidence from organisations or individuals, which are currently being prepared for publication in order to comply with data protection requirements. These will be followed by a summary of the submissions to the IRAL Call for Evidence made by government departments.