Keeping accountability: judicial review and the Independent Review of Administrative Law

Hazel Blake
Hazel BlakeThe Law Society

Hazel Blake, our policy adviser for domestic human rights, constitutional and administrative law, takes an in-depth look at the Independent Review of Administrative Law.

Lady Justice statue with rays of light shining through

If it were a laughing matter, you could be allowed a wry chuckle at the irony of judicial review itself being reviewed.

You can also be forgiven a sense of déjà vu, as this is by no means the first time judicial review has found itself on the political agenda – many will remember the last time it was considered not so long ago in 2012/13.

Yet circumstances have once again pushed judicial review reluctantly into the spotlight.

The Independent Review of Administrative Law

The current consternation is thought to have its origins in high-profile government defeats in the courts, including those already infamous cases concerning the triggering of Article 50 and the prorogation of parliament.

Following a subsequent manifesto commitment to take another look at judicial review to ensure "that it is not abused to conduct politics by another means or to create needless delays", the government announced the creation of the Independent Review of Administrative Law at the end of July 2020.

The panel of experts that make up the Independent Review of Administrative Law, led by Lord Faulks, is tasked with reviewing a wide range of issues.

From whether the rules should be codified and certain executive powers made immune to challenge, to procedural matters such as time limits, costs and standing, the call for evidence sought opinions on a smorgasbord of issues governing every aspect of judicial review.

What solicitors think

As judicial review is of great importance to the solicitor’s profession (as well as anyone with even a passing interest in the workings of democracy) we consulted widely among our membership to inform our response.

We conducted a survey to reach all members whose practice involves judicial review claims from both a claimant and defendant perspective. We benefitted from the input of six of our expert committees.

We also worked with leading judicial review solicitors from across the profession to co-produce a statement of fundamental principles which underpins our response.

The insights and evidence we gathered overwhelmingly suggest that fundamental reform of judicial review is not needed.

While there are legitimate questions on how certain aspects can be improved, on the whole the evidence shows that the current system is working well and that – contrary to some claims – the numbers of judicial reviews are actually declining in all but one practice area.

We've also been working with a team of researchers at the University of Essex, led by Professor Maurice Sunkin, to establish the evidence base needed for any discussion on the future of judicial review.

Preliminary results from this project were used to inform and substantiate the positions we put forward in our response. This work will also be of vital importance in assessing whatever next steps the panel proposes.

Our view

We outline four areas where improvements can be made to the efficiency of judicial review:

  • improving access to legal aid to ensure judicial review is available to those that need it most
  • encouraging engagement with pre-action protocol stage to reduce the need for full court hearings
  • strengthening the duty to disclose information to encourage settlement
  • re-instating immigration appeal rights to reduce the number of claims in this practice area while maintaining access to justice

Our response encourages the panel to focus on the role judicial review plays in the constitution.

Judicial review and people

Judicial review is central to protecting individuals against state power and has a very real impact on the lives of some of the most vulnerable in society.

By allowing people to challenge decisions made by government, local authorities and other public bodies in a court of law, judicial review is the mechanism that allows David to take on Goliath, bridging the gap created by the inherent imbalance of power between citizen and state.

Judicial review and business

Judicial review is similarly important to businesses. They rely on it to protect their interests. The availability of judicial review is attractive to the international investment that will be needed as we move beyond Brexit.

Something that has also been missing from discussions so far is acknowledgement of how judicial review encourages good governance.

Far from merely being a nuisance to authorities, the prospect and process of judicial review improves the quality of decision-making and promotes a culture of accountability that is beneficial to the exercise of public functions.

It is crucial that the Independent Review of Administrative Law panel gives serious weight to these considerations in the course of their deliberations.

Keeping one eye on the bigger picture will help ensure that any recommendations enhance, rather than impede, this mechanism which is so core to the UK’s reputation as a champion of the rule of law.

A race to the finish line

Concerns have been raised by many of those contributing to the call for evidence over the tight timelines the panel are working to.

An initial six weeks were allowed for submissions to be made to the call for evidence (later extended by a further week) and the panel themselves have a deadline that is not much more forgiving, as they are apparently due to put forward options to government ministers later this year.

For a review of this size and importance, such a short time span is ambitious at best. At worst, it raises questions over the depth of review and what can be practically achieved in this time.

We will be looking to the panel and ministers as the review concludes to ensure that confidence can be placed in the outcome.

Coming up next

Of course, this is only just the beginning of the government’s intentions outlined in their manifesto.

While it's uncertain what has become of the proposed Constitution, Democracy and Rights Commission, it has been indicated in a letter sent by the justice secretary to the Joint Committee on Human Rights that plans for reviewing the Human Rights Act will be taken forward by an independent panel, with further details to be announced “in due course”.

As several commentators have joked, constitutional law is supposed to be boring because nothing ever happens.

It doesn’t look likely that we’ll return to that for some time yet.