In March, the Independent Review of Administrative Law (“IRAL”) report was published along with the Government’s response to the IRAL, which set out proposals for reform of judicial review and contained a further consultation.
Following our response to the IRAL, JUSTICE have submitted a response to the Government’s consultation. Our response, which focuses on the importance of judicial review in protecting the rule of law and ensuring access to justice, was shaped by an Advisory Group, chaired by Professor Alison Young and comprised of the following members: Adam Chapman, Andrew Lidbetter, Catherine Callaghan QC, Gordon Anthony, Jennifer Macleod, Morag Ross QC and Sonali Naik QC.
The Government’s proposals included legislating to provide for prospective-only quashing orders and suspended-quashing orders (“SQOs”), including either a presumption in favour of or mandating their use. Other than legislating to provide for a discretion for the courts to use SQOs in very specific limited circumstances, we oppose these proposals. They risk substantial injustices and uncertainty, and the courts’ remedial discretion is crucial for the fair and effective administration of justice. We also oppose the Government’s proposal to legislate to strengthen the effectiveness of ouster clauses. Independent court review of administrative decision-making is of vital importance to the rule of law, addressing abuses of power, and promoting effective administration.
The Government has accepted the proposal in the IRAL Report to remove Cart judicial reviews (judicial reviews of refusals of the Upper Tribunal of permission to appeal a decision of the First-Tier Tribunal). In our response we stress that any such proposal must be based on empirically sound evidence and address the constitutional importance of Cart judicial reviews; neither of which we consider have been satisfied.
The consultation also proposes a number of procedural reforms. We support the Government’s proposals to remove the promptitude requirement from the time limit for judicial review claims and to introduce a formal provision for a claimant’s Reply. However, we caution against a general extension to the three-month time limit or to allowing parties to agree extensions between themselves. We are also opposed to the Government’s proposals to introduce a track system; extend the time limit for defendants to serve Detailed Grounds of Resistance; amend the requirements on defendants to serve Grounds of Resistance; and to introduce a requirement that parties identify potential interveners. These proposals are unnecessary, and risk increased procedural burdens on parties and the courts.