The Independent Review of Administrative Law report – findings, recommendations, and pleas

The Independent Review of Administrative Law report – findings, recommendations, and pleas

By Lee Marsons (University of Essex)

A shorter version of this blog appeared on the Admin Law Blog on 24 March 2021, available here.

On 18 March 2021, the day we had all been waiting for finally arrived. The Lord Chancellor, Robert Buckland QC MP, released the report of the Independent Review of Administrative Law (IRAL) following the panel’s period of consultation and reflection. It is a substantial piece of work at nearly 200 pages, particularly given the limited time available. The panel expressly acknowledged these time constraints in the first paragraph of the report. In this post, I will provide a summary of the panel’s key recommendations and findings. In response to the four major questions asked of the panel, the simple answers are: no statutory codification of judicial review; no statutory reform to justiciability; no statutory reform to the approach of the courts to decision-making; and modest procedural reforms.

However, inevitably, it is more complicated than these headline findings and in this post I want to expose some of that nuance. I will organise my discussion around four themes: proposals for express legislative reform; proposals to change ‘soft law’; recommendations for deeper expert consultation; and pleas to public bodies and the judiciary for mutual respect and trust vis-à-vis their respective institutional tasks.

Legislative proposals

Only two recommendations involve express legislative change. The first was that the decision of the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28, should be reversed by Parliament (p.70). In Cart, the Supreme Court decided that the decisions of the Upper Tribunal to refuse to grant permission to appeal against a decision of the First-tier Tribunal could be amenable to judicial review in the Administrative Court where that decision was affected by an error of law. The panel carried out a statistical analysis of Cart judicial reviews and found that they were the single largest category of applications to the Administrative Court between 2015-2019.

According to the panel, out of 5502 such applications, 12 were successful. Therefore, the panel concluded that the expenditure of judicial resources could no longer justify this form of judicial review (pp.66-70). At this stage, it is worth noting two things on this. First, while Cart judicial reviews might seem like low-hanging fruit, this proposal will not be uncontroversial. Indeed, during the call-for-evidence period, I was involved in a number of events and roundtables where practitioners highlighted the real need for Cart judicial reviews to correct serious public law errors made in the tribunals system. Second, numerous practitioners have now questioned the accuracy of these statistics, so it is worth looking out for any further research on this matter.

The second legislative proposal was that the decision of the Supreme Court in Ahmed v HM Treasury (No 2) [2010] UKSC 5, should be reversed by Parliament so that courts have the option of suspending quashing orders in particular situations. Specifically, the panel recommended that s.31 of the Senior Courts Act 1981 should include a new subsection (4A), which would read:

On an application for judicial review the High Court may suspend any quashing order that it makes, and provide that the order will not take effect if certain conditions specified by the High Court are satisfied within a certain time period.” (p.75).

In the view of the panel, this would provide greater time and flexibility for public bodies to produce workable solutions to quashing orders instead of being compelled to act in haste, possibly in an ill-informed and unwise way (pp.70-71). In addition, the panel considered that the option of suspending quashing orders would be beneficial for claimants. This is because courts have regularly shown caution about issuing quashing orders due to the potentially severe consequences on the public body. Therefore, the option of suspension may cause courts to become less reticent about granting this form of relief (p.71).

In relation to this, in the report there was an interesting discussion about the circumstances where an administrative act could be considered void ab initio or a nullity, with a common line of thought stemming from Anisminic being that any public law error could render a decision void for all time. The panel recognised the tension between this principle and the option of suspending quashing orders – if an act is unlawful and void, why should it continue to have any effect? (pp.72-74) However, the panel considered that there was a distinction between an administrative power and an administrative duty, with unlawful exercises of powers not necessarily being a nullity. Therefore, they preferred to leave the matter to the discretion of judges to decide whether they regarded an act to be a nullity or not, and to suspend a quashing order or not on that basis (p.74).

The panel further recognised that the option to suspend quashing orders may have consequences for collateral challenges to unlawful administrative acts in lower courts. After all, if a claimant could not be confident that an unlawful act would have been void and quashed, on what basis could they ask a lower court to regard the act as ineffective as part of, say, a criminal trial? However, the panel regarded their more flexible approach as being compatible with collateral challenges: ‘We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.’ (p.75) In particular, the panel concluded that:

The courts could simply take the position that an administrative rule or decision cannot be relied on as a basis for criminal proceedings, or as a defence in civil proceedings, if it would have been the subject of a quashing order or a declaration of nullity had that rule or decision been the subject of a timely application for judicial review (p.75).

Changes to soft law

The first recommendation for changes to soft law was a suggestion that the “Guidance for the Administrative Court” – presumably a reference to the Administrative Court Judicial Review Guide – should include criteria on when a court should permit interveners (pp.96-97). The panel was concerned with apparently increasing numbers of interveners who may add nothing useful to a case and simply replicate the arguments of the parties. The panel was also concerned that this area had been developed almost entirely by way of judicial discretion, with no precise assistance from Part 54 of the Civil Procedure Rules (p.96).

The second recommendation was that The Treasury Solicitor should develop revised guidance on the duty of candour in judicial review proceedings, including its application to the pre-action stage (p.103). This was because, for the panel, the scope of the duty may operate onerously against public bodies, particularly if they are expected to furnish documents at great cost related to public law issues not even raised by the claimant. This was especially so in relation to general challenges against policies in abstracto. Moreover, during the pre-action stage, the panel was concerned that claimants regularly sought documents related to official advice to ministers that would not be disclosable via freedom of information requests, and the disclosure of documents that may reveal sensitive details, such as Crown Prosecution Service charging decisions which may refer to witnesses and victims of crime (pp.99-102).

The third recommendation is that the Civil Procedure Rules should make express provision for a right of reply by a claimant to a defendant public body’s acknowledgement of service (‘AOS’) within 7 days (pp.108-109). The AOS sets out the grounds on which a public body contests the judicial review application (p.107) and the approach of the courts had been inconsistent on permitting claimant replies to be made (p.108).

A fourth potential proposal, though not one expressly supported, is the option of abolishing the requirement for “promptitude” in lodging a judicial review application under Part 54 of the Civil Procedure Rules. The panel was not in favour of altering the absolute time limit of 3 months, but the promptitude option was suggested on the basis that it is so rarely invoked that it had limited practical effect (p.107). Though the panel expressed understanding of the view that an extended time limit might encourage greater out-of-court settlements via the Pre-Action Protocol for Judicial Review, the members did not consider that legislation could realistically be drafted to cover this, especially with regard to the need to require parties to seriously attempt to resolve disputes in the pre-action process. In addition, the panel regarded consensual extension of time limits between the parties to be problematic given that it could cause undesirable side-effects for persons affected by the claim but not party to the proceedings (pp.105-106).

Further consultations and expert examination

The panel did not believe that it would be wise for Parliament to statutorily intervene to reform the grounds of judicial review (p.60). Nor did the panel recommend that Parliament statutorily reform the law of justiciability (p.56), or codify the grounds of review (p.32). Partly, this was on the basis that the panel identified no new instances of judicial expansion into previously non-justiciable territory over the last 40 years (pp.42-43) but for the exceptional Brexit cases which the panel regarded as of limited wider significance (p.41). Nevertheless, the panel concluded that it was perfectly lawful for Parliament to legislate to exclude certain decisions from judicial review if Parliament wished to (that is, enact ouster clauses) (p.52), but that these should be done through specific and narrow enactments and not broad legislation (p.55). Despite these findings, the panel did express concern over the principle of legality and the creeping way that common law proportionality was coming to be recognised (pp.64-65). This was because the recognition of common law constitutional rights was almost entirely a matter of judicial discretion, which could promote unpredictability. There is a recommendation that non-judicial expert bodies such as the Law Commission or House of Lords Constitution Committee should look at the issue of common law constitutional rights and the principle of legality with a view to providing guidance to courts (p.66).

The panel was also concerned with the costs regime in judicial review proceedings, which often cost tens of thousands of pounds in legal fees for modest periods of court time. The panel recommended that there should be a careful study of the costs regime in judicial review, though specified no particular body to carry out that review (p.78-79). Similarly, the panel argued that it would be desirable to look at the regulation of crowdfunding for judicial review, though no express proposals are put forward and no particular body is recommended (p.111).

Pleas for mutual respect and trust

One of the most interesting aspects of the report are the recommendations where the panel suggests no practical changes to any legislation or soft law, but simply issued a plea to courts or public bodies to change their attitudes or conduct, or to bear particular constitutional issues in mind.

For instance, the panel made no suggestions for legislative reforms on standing requirements (p.94). However, the panel did recommend that courts and public bodies take a more sceptical and proactive attitude towards the issue. In the view of the panel, there is a difference between associational standing where an organisation more clearly represents a class of persons affected by a decision, and public interest standing that challenges an entire policy on the basis of a single organisation’s view of the public interest (p.94). The panel recommended that public bodies should be encouraged to raise standing issues more often in litigation and that courts should proactively police the issue whether or not it is raised by the parties themselves (p.111).

Another example of this arose in the discussion related to judicial overreach and judicial restraint vis-à-vis the grounds of review and justiciability (pp.57-66). Notably, the panel concluded that the best solution to any potential judicial overreach was judicial restraint and not legislative action (p.61). Indeed, the panel’s conclusion effectively reads as a plea to courts to be careful:

The most obvious solution to a potential problem of judicial overreach is judicial restraint. This solution involves the courts’ reaffirming the fundamental constitutional fact that it is not for them to pronounce on the wisdom of the exercise of public power; instead, they are to perform the quite different function of determining whether the legal limits on the exercise of public power have been exceeded… We would encourage the courts constantly to keep that constitutional fact in mind.

A similar comment was made in relation to justiciability:

It is to be hoped that the courts will be particularly conscious of recent constitutional upheavals with the result that there will be less conflict between the Executive (or Parliament) and the judiciary (p.56).

The government and parliamentarians received similar pleas for caution and moderation:

While the Panel understands the government’s concern about recent court defeats, the Panel considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally. (p.56).

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 (p.132).

There were many such pleas to demonstrate mutual trust and respect.

The Ministry of Justice consultation

In light of the panel’s recommendations, the Ministry of Justice has launched a six-week consultation to end on 29 April 2021. The consultation focuses on: whether there should be statutory clarification of the effect of ouster clauses; whether the suspension of quashing orders should be mandatory or discretionary; whether remedies should be prospective-only, particularly in relation to statutory instruments; the circumstances where an unlawful decision can be regarded as a nullity; and further procedural reforms. In many respects, this consultation is more significant and contentious than IRAL’s report, as Lord Anderson of Ipswich noted in The Guardian, Professor Paul Craig has noted via the UKCLA, and Lord Faulks himself has commented to Joshua Rozenberg. I make no comments about it at this stage other than to say that self-evidently public and administrative lawyers will wish to submit reliable evidence and experiences to the consultation and keep a close eye on its eventual findings, particularly any that go far beyond any problems identified by the panel.