In Autumn 2020, the UK Government set up an Independent Review of Administrative Law (IRAL) to address some significant, fundamental issues around the role of the courts in reviewing government decisions. It looked at questions such as what type of decisions should be allowed to come to court, and whether certain types of government decision should not be allowed to be reviewed in court. Underneath much complexity and legal process lay some very big issues around government accountability and access to justice.
The independent panel however, on most of the issues it addressed, has recommended no change.
Their report said that parliament could legislate to set out in statutory form what is non-justiciable, and that they could legislate to specify the grounds for judicial review – but they do not recommend it.
They warned that Parliament cannot legislate to rule out judicial review more generally. If they try to restrict judicial review on particular issues, they will face significant hostility and significant ‘rule of law’ questions.
The review specifically highlighted the responses from devolved stakeholders. They found that,
“The submissions are without exception opposed to, or at best not persuaded of, the need for reform. Reforms have recently been made to judicial review in both Scotland and Northern Ireland, following comprehensive reviews of their civil justice systems, which are said to be working well.“
The report highlighted some of the issues around enabling a two-tier system of differing criteria for judicial review depending on whether you raise a reserved-UK matter or a devolved-Scotland matter.
The panel also emphasised that there must be proper consultation before any reform to judicial review. They criticised the shortage of time for their work, even though the issues raised were so significant. They said:
“we would wish to underline the fundamental importance of such consultation, conscious as we are that in responding to our call for evidence respondents have for the most part been ‘shooting in the dark.”
The panel did make two recommendations for judicial review: limiting the availability of judicial review in immigration and asylum cases by abolishing Cart JRs, and giving courts the power to suspend quashing orders, along with some potential procedural changes.
In response to this review, the UK Government accepted these two recommendations for change.
However, they immediately also launched a consultation that will explore proposals that go beyond these, and will look again at some of the detail around the role and function of judicial review in our constitutional set up. Again, this consultation only has a 6 week window to respond – this is particularly disappointing given that the IRAL panel highlighted the shortage of time as being problematic.
Recent comments by Robert Buckland, the Lord Chancellor, suggest again that the UK Government views the current role of the courts as very problematic and needing changed, perhaps fuelled by major Brexit-related court decisions such as on prorogation of Parliament. Alongside the current Human Rights Act review, the UK Government is intent on reform to accountability mechanisms, something that we need to be very alive to if human rights are to be protected.