The real agenda behind the Independent Review of Administrative Law

Posted on 19th November 2020

The Independent Review of Administrative Law recently issued a call for evidence. It ran for just seven weeks before it closed on 26 October 2020. The Review Panel intends to examine the evidence submitted and put forward options for reform later this year, so within two months.

HJA’s response set out how the reforms contemplated by the Review risked undermining the health of our democracy.

The Review contemplates major constitutional reform which would have profound implications for the courts’ ability to uphold the rule of law. Its Terms of Reference imply that its intention is to – somehow – revise many decade of jurisprudence.

It is not only impractical to do this on the timescale proposed; there are grave dangers in attempting such a task.

The Review is the realisation of the Government’s manifesto promise to ensure that judicial review “is not abused to conduct politics by another means or to create needless delays”. That promise was an expression of the Government’s frustration and embarrassment at the Supreme Court’s prorogation judgment of September 2019.

So while it purports to be independent, the Review’s inception was anything but. Were the Panel to be representative of those who are involved in, and affected by, judicial review, or its Terms of Reference or questions to be balanced and neutrally worded, that might provide some reassurance.

But the Panel is not representative. It does not include anyone with expertise in bringing judicial reviews on behalf of claimants.

Nor are the Terms of Reference or the questions in the call for evidence balanced and neutrally worded. The clear premise behind them is that judicial review is routinely abused by claimants, it is costly, time consuming and frustrates good decision making. There is little recognition that judicial review exists to serve and facilitate good governance and accountability, and good quality decision-making.

To the extent that judicial review is considered to be burdensome on public bodies, there are already barriers to ensure that poor cases are filtered out early. Those cases that pass the permission stage may be burdensome, but they are valid cases where there is a real question to be answered as to whether a decision is wrong in law. Such decisions often affect individuals’ lives in profound ways.

And in fact there has been a steady decline in judicial review applications since 2015, likely as a result of reforms in 2012 and 2015 which placed significant barriers in the way of claimants, on top of those that already existed.

Indeed the Review could and should look at ways to ensure that it is properly accessible to those who need it. The risk of having to pay the public body’s costs if they lose often prevents individuals from challenging unlawful decisions. Equally, the environment cannot speak for itself and relies on charities to speak for it, but judicial review is often beyond the reach of charities with limited resources.

However the Review does not appear to contemplate improving access to justice. On the contrary it proposes to tighten the existing restrictions, without sufficient appreciation of the likelihood that removing the scrutiny that judicial review provides would have the effect of reducing the quality of public decision-making.

The best way to reduce the number of judicial reviews coming to court would be to improve training and supervision within public bodies, so that individuals affected by poor and unlawful decisions would not need to go to the trouble and expense of bringing challenges, and public bodies could avoid the trouble and expense of defending them.

The Government’s manifesto, and the way in which the call for evidence is phrased, make clear that the real concern that the Review seeks address is that judicial review can be uncomfortable for public bodies and to the government itself, because it opens them up to scrutiny and exposes unlawful decisions. There is no doubt that judicial review can be embarrassing for governments.

But discomfort is not a good enough reason to dismantle a key feature of our constitution, which is no less than what the Review contemplates. A healthy democracy can tolerate a little embarrassment because those in authority accept that judicial scrutiny protects the country and its individuals from poor, unlawful or corrupt decisions. It is hoped that the Panel recognise this.

If the Review’s intentions are less sinister than they seem to be, then the Panel should ensure that it is properly representative of those involved in judicial review work, and publish all the responses to the call for evidence.

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