Judicial review consultation launched – GOV.UK

  • independent review of published administrative law
  • the proposals aim to prevent judges from being drawn into politics
  • as part of a plan to strike the right balance between citizens’ rights and effective governance

A public consultation launched today (18 March 2021) will directly address the recommendations of an independent expert panel – led by Lord Faulks QC – who reviewed evidence from a range of organisations, academics and professionals law.

They explored whether the right balance was struck between the right of citizens to challenge executive decisions and the need for effective government.

The panel found that the courts are increasingly examining the merits of government decisions themselves, instead of how those decisions are made – going beyond the mandate of judicial review.

The Lord Chancellor, Robert Buckland QC MP, said:

I am extremely grateful to Lord Faulks and his panel of experts for this timely and thoughtful report.

We must seize this opportunity to restore the proper balance between the institutions that have been so essential to our success as a nation – to protect the rights of individuals, our vital national security and effective government.

These essential reforms will prevent the judiciary from being drawn into political issues and preserve the integrity of judicial review for the purpose of holding government to account, carrying out the intention of Parliament and protecting individuals.

The panel recommended 2 immediate reforms:

  • Abolition of so-called “Cart Judgments” to prevent appeals to the High Court from being subject to judicial review in the High Court. Of 5,502 such cases analyzed by the panel, only 12 (or 0.22%) were confirmed – requiring disproportionate judicial time. Cart’s judicial reviews, which have virtually no chance of success, have been found to cause delays in the rapid processing of immigration and asylum cases, with last-minute challenges often made to prevent the expulsion of people who have no right to be in this country. .
  • Give the courts the power to suspend rescission orders. Judges would benefit from greater flexibility in order to avoid hasty political solutions when government errors are identified. Currently, annulment orders made by judges take effect immediately.

Under the proposals presented today, a court could set conditions and the avoidance order would only take effect if these were not met after a certain period of time – allowing time to remedy the defects.

Today’s announcement is an important step in achieving a key manifesto commitment to ensure the judicial review process is not open to abuse and delay. Ministers are committed to building on this important work by consulting on further action informed by the panel’s analysis. Specifically:

  • Ensure that the exclusion clauses are applied, as Parliament intends. As Parliament is sovereign, it can adopt ‘exclusion clauses’ – these define the limits of the court’s jurisdiction in certain matters. They are used when Parliament feels that a matter should be decided by the courts, for example to prevent the courts from becoming embroiled in politics. This allows Parliament to identify areas that do not lend themselves to legal accountability, while maintaining essential controls through parliamentary scrutiny. The consultation examines how best to give effect to these clauses.
  • Introduce broader options for remedies. The proposal would give judges discretion to order prospective relief only, thereby increasing the range of tools available to courts. This would ensure that resources could be focused on future solutions, rather than spending taxpayers’ money to correct past mistakes.
  • Nullity. The government will consider defining exactly how and when a use of power is automatically “null and void”.
  • Procedural reforms. Subject to consultation, a series of efficiency proposals will be submitted to the Civil Procedure Rules Committee for consideration.

The proposals seek to uphold the Lord Chancellor’s duty to protect the independent judiciary and uphold the rule of law.

Today’s announcement is the first step in the government’s wider Commission on Constitutional Rights and Democracy, which includes the ongoing independent review of the Human Rights Act, and the Royal Commission on the criminal justice system which will be launched this summer.

Notes to Editors

  • The Independent Administrative Law Review was launched in July last year: https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
  • The full IRAL report and government response can be found here: https://consult.justice.gov.uk/judicial-review-reform/judicial-review-proposals-for-reform
  • A brief summary of the Panel’s findings:
  • The Panel’s analysis has identified a growing trend for courts in judicial review cases to move away from strictly supervisory jurisdiction, becoming more willing to examine the merits of the decisions themselves, rather than the way in which those decisions have been made.
  • There is a risk that the reasoning of decision-makers will increasingly be replaced, for the most part, by that of the court. We should strive to create and maintain a system that avoids having the courts adjudicate on matters of merit or moral values ​​that are instead the responsibility of the executive or Parliament.
  • The Panel proposed two substantive law reforms: reversing the effects of Cart and introducing conditional rescission orders as a new remedy
  • Judging on the basket:
    • Review analysis found that 5,502 Cart judicial reviews have taken place since this avenue of judicial review was made available, but in only 12 cases was an error of law found.
    • That’s a surprisingly low success rate of just 0.22%.
    • Since each of these 5,502 cases requires detailed judicial review, this is an enormous amount of judicial resources used to rectify an extremely small number of errors.
  • About canceling orders
  • The Committee concluded that courts should have the ability to suspend rescission orders, setting a time limit before which any administrative errors should be corrected.
  • Indeed, courts are often forced to make a difficult choice between remedies, a stayed order would give the challenged decision-maker time to rectify any errors, instead of having their decision reversed from the outset.
  • On the rules of civil procedure
    • The consultation will also consider whether to recommend that the Rules of Civil Procedure Committee consider a series of procedural reforms to improve the efficiency of applications for judicial review.
    • These will include:
      • Removal of speed requirement to make room for pre-trial resolutions
      • Allow the parties to agree to extend the claim period
      • Formalization of the procedure for responding to an Acknowledgment of Service (as suggested by the Review)
      • Seeking pre-action protocol improvements to encourage pre-trial solutions
      • And several others that are detailed in the Consultation Document