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30th March 2021

Consultation on Judicial Review opens

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The Government has responded to the recommendations of the independent Panel it appointed to review UK administrative law and has now launched a public consultation.

The Court procedure by which a decision made by a public body can be challenged (Judicial Review), has come under the spotlight in recent years due to a number of high-profile cases, most prominently concerning decisions on rights to remain in the UK and the revocation of Article 50 of the Lisbon Treaty and the prorogation of Parliament in the context of Brexit.

In July 2020 the Government launched a review by an independent Panel into whether the present Judicial Review regime strikes an appropriate balance between the rights of citizens to challenge executive decisions and the need for effective and efficient government.

The review has potentially significant implications for the constitutional balance between the roles of the executive, the legislature and the judiciary.

Independent Review of Administrative Law

The Panel’s report to the Government in January 2021 considered in detail the grounds, limits and procedure for Judicial Review claims. Among other things, it advised against implementing wide-reaching legislation to limit areas which are considered “no-go” for review by judges and noted that there would not be significant advantage to codifying the grounds for Judicial Review in statute.

The Panel made two recommendations for immediate reform: firstly, that the principle whereby decisions of the Upper Tribunal that permit an appeal of a decision of the First Tier Tribunal can be reviewed by the High Court on the basis of an error of law should be discontinued, and secondly that the Court should be enabled to make suspended quashing orders rather than being limited to a quashing order which takes effect immediately.

The Government’s Response

The Government has responded to the Panel’s report this month. Addressing the House of Commons on 18 March 2021, Lord Chancellor Robert Buckland stated that the Panel’s recommendations are “clear, practical and achievable” and indicated that the Government is eager to take them forward as soon as possible.

Mr Buckland went on to say however that while the Panel’s recommendations are “an excellent starting point for rebalancing our system”, the Government “would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.” The Government’s position is that “a closer look” should be taken at the role of Judicial Review within the constitution and its operation in practice.

The Government’s position attracts opposition from those who consider its agenda to be to reduce the ability of the Courts to hold the present Government to account of the law in circumstances where it has recently found itself on the wrong side of Judicial decision making.

Consultation on Judicial Review

On issuing its response to the Panel’s report, the Government has now launched a public consultation into the proposals raised by the review. It is also consulting on further areas of potential reform such as whether to implement rules delineating which issues should not be reviewable by Judges, whether the Courts should be able to award prospective-only remedies and whether such remedies should be presumed or mandatory in challenges to Statutory Instruments.

The outcome is expected to be controversial.

The consultation period will last until 29 April 2021

For more information on any of the items raised in this article please contact Emma Elston on 01223 461155 or click here to email Emma.