Administrative and public law

Ministry of Justice judicial review reforms consultation – Law Society response

The proposals

The Ministry of Justice held a consultation on proposals for reforming judicial review.

This followed the Independent Review of Administrative Law, which evaluated the system of judicial review.

The consultation asked for views on the recommendations made by the Independent Review of Administrative Law on:

  • legislating to reverse the judgment in R (Cart) v The Upper Tribunal so that decisions of the upper tribunal are no longer eligible for judicial review
  • giving the courts a power to award suspended quashing orders

It also asked for views on additional proposals:

  • requiring the courts to give greater effect to ouster clauses in legislation
  • determining when a court can declare that an unlawful act is null and of no effect
  • introducing prospective-only orders
  • creating a presumption or mandatory approach to suspended quashing orders or prospective-only orders
  • inviting the Civil Procedure Rule Committee to consider various procedural changes, including on time limits and interveners

Our view

Judicial review has a vital place in the UK’s constitutional balance of powers between the executive, parliament, and judiciary.

It's a way of ensuring the accountability of public authorities, maintaining trust in executive decision-making and is a crucial protection for individuals against state authority.

It contributes to:

  • good governance
  • improving decision-making
  • the quality of policy

Some of the proposals put forward by government – introducing suspended quashing orders, removing the promptitude requirement from time limits, and allowing extension by agreement – would help judicial review to function more effectively.

However, substantial reforms are unnecessary and would do more harm than good.

The factual circumstances and points of law that can arise in judicial review are vast. No two judicial reviews are the same. This means flexibility is needed to ensure that a fair outcome that fits the facts of the case can be reached.

A number of the proposals – particularly introducing prospective-only remedies and creating a mandatory or presumptive approach to remedies – would unacceptably restrict judicial discretion. They would also deny successful litigants an effective remedy.

This would undermine the very purpose of judicial review and have a significantly detrimental impact on the rule of law and access to justice.

Proposals to determine when a court can declare an act null and void, and when ouster clauses are applicable would be impractical.

They would make the law more complex and lead to a rise in litigation that would reduce legal certainty by destabilising administrative law and practice.

Ouster clauses in particular have the potential to exclude an individual from seeking justice so should only be used in rare, exceptional circumstances with strong justification.

We're concerned that the proposals go much further than the recommendations made by the Independent Review of Administrative Law, and that the effect would be a fundamental distortion of the protection judicial review is supposed to provide against state action.

Next steps

The consultation closed on 29 April 2021.

The government responded to this consultation in July 2021.

It stated it would be legislating to:

  • give the courts the power to award suspended and prospective-only quashing orders, which will be subject to a statutory presumption
  • reverse the judgment in R (Cart) v The Upper Tribunal so that decisions of the Upper Tribunal are no longer eligible for judicial review

Read the government's consultation response on the GOV.UK website

Alongside the consultation response, the government introduced the Judicial Review and Courts Bill to implement these changes.

See our response to the Judicial Review and Courts Bill

Maximise your Law Society membership with My LS