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Reviewing Judicial Review: The constitutional importance of the Independent Review of Administrative Law 2020

Reviewing Judicial Review: The constitutional importance of the Independent Review of Administrative Law 2020

Theodore Konstadinides, Lee Marsons and Maurice Sunkin (University of Essex)

Introduction

Last year, the Government committed itself to establishing a Commission on the Constitution, Democracy and Rights, which would consider reform of the UK’s constitutional order, including judicial review and the Human Rights Act 1998. Instead, on 30 July 2020, the Government launched an ostensibly narrower Independent Review of Administrative Law (IRAL) to examine the need for reforms of judicial review in particular. This is to be conducted by an advisory panel of experts led by Lord Faulks QC. Any options for reform put forward by the Review will be considered by the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC MP and by the Chancellor of the Duchy of Lancaster, Michael Gove MP. Both the report of the Review and the Government’s response will be published by the end of 2020 or shortly thereafter.

The authors of this blog post are involved in a project funded by the ESRC with the objective of assisting The Law Society of England and Wales to amass an evidence-base that will help inform the Society’s response to the Review’s call for evidence and eventual reform agenda. The Law Society is the independent professional body representing solicitors in England and Wales. This blog post offers some initial observations about the Review and is written in a purely personal capacity and does not necessarily represent the views of The Law Society.

The scope of the Review in context

The Review is expressly framed as an attempt to explore the balance ‘between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government’. In particular, the Review considers the: (i) codification of the grounds of judicial review and the amenability to review of public decisions; (ii) justiciability of certain executive decisions; (iii) grounds and remedies available in justiciable claims and whether these should differ depending on the subject-matter of the case; and (iv) any additional procedural reforms, such as time limits, costs, appeals, and standing.

The current Review is the latest in a series of exercises over the past decade directed at reforming judicial review. Recent consultations include:

While the current Review follows this reform trajectory, it is substantially different in its framing and objectives in several respects. In particular, this exercise is presented as being concerned with a range of broader issues than previous consultations, which largely focused on procedural and financial reforms. This is indicated by the Review’s function to provide an independent examination of ‘administrative law’, rather than ‘judicial review’ exclusively. This would be an ambitious project especially given the seemingly tight timeframe being set, not least for the initial consultation (some six weeks from start to end). However, the reality of the Review may belie its ambitious wording. In practice, it seems that the Review is considering ‘administrative law’ only in the narrowest of senses – that is, those aspects of administrative law that are associated with the grounds of judicial review.

In other words, the Review appears not to be concerned with the broader territory of administrative law or with the wider landscape of administrative justice. There is, for instance, no indication that it will examine statutory appeals, administrative reviews, the work of tribunals, or ombuds. The implication is not only that judicial review equates to administrative law, which many will recognise as being dubious, it is also that judicial review can be understood and reformed in isolation to those parts of the administrative justice system to which it is inevitably attached. This is an artificially narrow approach. After all, judicial review is a remedy of last resort and its use is intimately connected to the availability of other routes of redress, including those within public bodies themselves. This narrow approach to administrative law also runs the risk of producing reforms to one part of the wider system without adequate regard to other parts.

It is perhaps not surprising that, despite its title, the Review has not been established to consider wider issues of administrative law redress and justice. After all, these wider issues of redress are not the political priorities underlying the Review. The real priorities are likely to be those originally flagged by the government when it promised to establish a Commission on the Constitution, Democracy and Rights.  The real issues of concern are constitutional in character and this is why the Review differs substantially from previous consultations. The earlier concerns were to make procedural changes that would address the perceived growth in the use of judicial review that was thought to be largely driven by claimants seeking to abuse the system and to prevent judicial review impeding good government. The current call for reform builds on these concerns but now the priority has shifted away from procedural reform to more substantive constitutional reform. In particular, the Review is being asked to address fundamental issues concerning the appropriate constitutional place of judicial review, including: whether the courts are interfering inappropriately with executive decisions and if so whether certain types of executive decisions should be protected, whether appropriate tests of justiciability are being adopted, and most fundamentally of all whether judicial review should be placed on a statutory footing and the grounds codified.

Important omissions from the call for evidence

The omission of any reference to human rights is striking. This probably reflects an intention to draw a clear line between the focus of this IRAL’s work and future consideration of human rights issues and the Human Rights Act 1998. Indeed, one is left wondering whether the Government’s and Lord Faulks’s views about repealing the Human Rights Act 1998 have a bearing on this omission. But this too suggests that the IRAL is being asked to take an artificial and narrow approach to judicial review. It is difficult to see, for example, how the grounds of judicial review and issues such as justiciability can be considered without addressing human rights. After all, sections 6 and 7 of the Human Rights Act 1998 create an express statutory obligation on public bodies not to violate the human rights in Schedule 1 and provide victims of a violation the right to pursue legal proceedings against a public body. Moreover, the approach of the courts to such matters as rationality, procedural fairness, and proportionality is fundamentally affected by issues concerning human rights. Human rights are now fundamentally entwined into the life of judicial review and while surgical procedures may be used to try to separate them out, there is a real risk that the patient will not survive: that no sustainable reforms will be produced and that those reforms will ignore major issues at their core.

Reassurance about the place of fundamental rights in judicial review would have been particularly welcome since the EU Charter of Fundamental Rights (which sets out individual rights and freedoms emanating from CJEU case law, the ECHR and common domestic constitutional traditions) will cease to have effect in the UK at the end of the Brexit implementation period. This development will affect constitutional checks that are currently capable of correcting outdated legislation. For instance, after 31 December 2020, claimants in cases like Benkharbouche (where the Supreme Court held that the State Immunity Act 1978 was unlawful for breaching Article 6 ECHR and Article 47 of the EU Charter of Fundamental Rights) will not be able to get a remedy beyond a declaration that their rights have been breached under s.4 of the Human Rights Act 1998.

More stark is the omission of any reference to the most fundamental premise of British constitutionalism; namely, parliamentary sovereignty.  Indeed, there is no reference to Parliament in either the terms of reference or the call for evidence. Instead, the IRAL’s work is expressly framed as an exercise to determine the appropriate balance between executive action and the individual’s ability to challenge the executive, whitewashing Parliament from view. This neglects that the executive is the junior constitutional partner (as Lady Hale put it at [90] in Miller I) and that Parliament is sovereign. Government is not entitled to ignore the law as enacted by Parliament, even if this would substantially improve its efficiency and accomplish its objectives. This is basic Entick v Carrington (1765). The Review locates judicial review within a struggle between executive and judges when that is not necessarily its primary and exclusive place within the constitution – arguably, its basic and core role is to ensure that government acts within the powers granted by Parliament (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). This essential point has not even a footnote in the IRAL’s extant documents.

Also concerning is the lack of any express or implied recognition of the potentially major constitutional consequences of codifying the grounds of judicial review, particularly for the accountability of the executive to the common law. For many commentators, the experience of the Australian codification of the grounds of review in the Administrative Decisions (Judicial Review) Act 1977 has been the ossification and stunting of judicial developments in the grounds of review e.g. Mark Aronson, ‘Is the ADJR Act hampering the development of Australian administrative law?’ (2004) 15 Public Law Review 202 and T.H. Jones, ‘Judicial Review and Codification’ (2000) 20 Legal Studies 517. A similar eventuality could arise with these reforms – an executive with a large majority in the House of Commons inveigles Parliament to codify judicial review so as to prevent or hamper the courts from developing and increasing its accountability at common law.

Evidence and methodology

A final comment concerns the method by which the IRAL seeks to obtain evidence. The Review is rightly concerned to base its deliberations on the available evidence, including on such matters as the trends in judicial review over the last thirty to forty years. However, the challenges in identifying, marshalling and understanding that evidence in the short time available cannot be overestimated. One of the small contributions we hope to be able to make is to assist The Law Society in this regard and other potential respondents to the consultation no doubt will also be doing their best to root their comments in evidence, including their experience of the system.  It is noteworthy that the IRAL’s secretariat quickly produced a full questionnaire to government departments. The responses are likely to provide significant evidence relating to how government departments experience and perceive judicial review. This will be a valuable addition to our knowledge base. 

However, and this is to say the obvious, that evidence will only provide a partial view of the working of the system – the view of defendant public bodies subject to judicial review. Ideally, a similar exercise would be conducted to seek the views of claimants and their lawyers, as well as other users of the system.  Such an exercise would ideally enable the responses to be analysed and coherently presented as a corrective to defendant-focused evidence.  This of course would supplement but not replace individual submissions. It would help ensure that the IRAL has access to a full range of experiences and opinions.  Undertaking such an exercise in the time available will be a real challenge but one that is extremely important, and this exercise is something that we are currently considering with The Law Society.

About UK Administrative Justice Institute

Funded by the Nuffield Foundation, we link research, practice & policy on administrative justice in the UK

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