In July the Government announced an Independent Review of Administrative Law to consider potential reforms to the substance of, and procedures for, judicial review. JUSTICE have submitted a response to the Review’s Call for Evidence shaped by an Advisory Group, chaired by Lord Dyson and comprising the following members: Zahra Al-Rikabi; Professor Gordon Anthony; Catherine Callaghan QC; Adam Chapman; Andrew Lidbetter; Jennifer MacLeod; Morag Ross QC; and Professor Alison Young.
In the response we stressed the crucial constitutional role that judicial review plays in in the UK’s unwritten constitution. We opposed codification of judicial review grounds on the basis that it would not achieve the stated aims of clarity and accessibility, drawing on Australia’s experience as a comparator. We also express concern that codification may result in a restriction of the grounds of judicial review. Similarly, we oppose making certain categories of executive power non-justiciable, as this would undermine the key constitutional role of the courts in ensuring that the Government acts lawfully.
In respect of procedural reforms, we note that there have already been a number of recent reforms which seem to have had their intended effect of reducing the overall number of judicial review claims as well as the proportion of those that are unmeritorious. We note that the permission stage acts as an effective filter and that the vast majority of judicial review claims do not make it to court. We stress that any restriction of the test for standing, time limits or the duty of candour would have a severe detrimental impact on access to justice. However, we also make some suggestions for reform, including: clarification of the point in the proceedings that the duty of candour arises; the need to properly consider Sir Rupert Jackson’s costs reform proposals in light of fundamental issues with the costs of bringing a judicial review claim and the impact this has on access to justice; and the need to encourage early engagement and communication between the parties in order to facilitate early resolution of claims.