By Joanna George
Research Associate, University of Cambridge
Judicial review is a type of court procedure where a claimant (which can be an individual or an organisation) challenges the lawfulness of an enactment (authorisation), decision, action, or failure to act in relation to the exercise of a public function. This is usually, although not always, undertaken by a public body such as a government department, local council or health authority.
Why does judicial review matter? As the Courts and Tribunals Judiciary website explains, ‘judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.’ It is a vital part of the UK’s constitutional balance of powers between the executive, parliament and judiciary. Judicial review also maintains parliamentary sovereignty and trust in government decision making. Additionally, it empowers people to challenge decisions made by public bodies and provides justice where necessary.
The Independent Review of Administrative Law (‘IRAL’) was set up to consider whether changes were needed to judicial review following several high-profile cases about which the Government had expressed concern.
What is IRAL and where did it come from?
IRAL consisted of a panel of six experts including the chair, Lord Faulks, a former Justice minister. They were tasked with examining trends in judicial review relating to ‘the policies and decision making of the Government’. Launched in July 2020, the panel were instructed to keep in mind the dual balance of citizens being able to ‘challenge the lawfulness of executive action through the courts’ with the ‘role of the executive to govern effectively under the law’.
The origins of IRAL come from the 2019 Conservative manifesto which promised ‘to look after the broader aspects of our constitution’ after Brexit, most notably ‘the relationship between the Government, Parliament and the courts’ through a Constitution, Democracy and Rights Commission. Instead of establishing a general commission the Government opted to launch several specific reviews, including IRAL. Referring to judicial review, the manifesto promised to ensure that judicial review ‘is not abused to conduct politics by another means or to create needless delays’.
The Government was concerned that recent decisions of the Supreme Court had been used to conduct politics by other means – especially the two Brexit cases (Miller I and Miller II).
Significantly, the Miller II judgment (which held that the Government’s advice to the Queen to prorogue Parliament for five weeks was unlawful) was decided less than three months before the 2019 general election. IRAL acknowledged the political connotations in its final report, noting that the review did have a ‘political dimension’ and that ‘it was in part a response’ to the Brexit cases.
What did IRAL conclude?
IRAL published its findings and recommendations in a report on 18 March 2021. Of the issues IRAL was tasked to consider it recommended no or minor changes. The main policy recommendations and takeaways are outlined below:
- Abolish Cart judicial reviews: Parliament ought to intervene to reverse the Supreme Court’s judgment in Cart which established in 2011 (in limited circumstances) that the High Court could judicially review decisions of the Upper Tribunal to refuse permission from the First-tier Tribunal. It was noted that Cart judicial reviews only have a 0.22% rate of success (this figure has since been questioned by academics and practitioners), making the expenditure of resources on dealing with such claims disproportionate.
- Give courts the discretionary power to make use of suspended quashing orders in appropriate cases: Parliament should legislative to reverse the Supreme Court’s decision in Ahmed (No.2). A quashing order is a remedy in judicial review that invalidates a decision made by a public body. If a decision is quashed, the law treats that decision has having never been taken – referred to as nullity. This can have consequences for those who have relied on that decision before it was quashed. A ‘suspended’ quashing order is a ‘quashing order which will automatically take effect after a certain period of time if certain specified conditions are not met’ (see 3.49 of the report). The impact of the quashing order is delayed, giving public bodies the chance to remedy defects or to alleviate the impact of a quashing order on others who have relied on an unlawful decision.
- Abolish the requirement of promptitude: The current three-month time limit for bringing judicial review claims should continue but that the requirement for them to be brought ‘promptly’ should be abolished. IRAL concluded that this requirement was not necessary and could sometimes make the law unclear.
The Government subsequently responded to the report with its own response and further consultation which ran from 18 March to 29 April 2021. The aim of the consultation was to consult on how to effectively implement the IRAL report’s recommendations and to also consult on proposing further judicial review reforms beyond those recommended in the report.
The recommendations and proposals in the IRAL report, Government response and further consultation has been implemented in the Judicial Review and Courts Bill 2021 which is currently being examined in the House of Commons.