Independent Review of Administrative Law

The establishment of the Independent Review of Administrative Law was announced in July 2020. It will consider options for reforming the process of judicial review and make recommendations to government.

More information on the Review can be found on the government website.

The role of judicial review

The UK has a long and proud history of honouring the rule of law. This means that everyone, including the government, must comply with the law.

While the government can initiate changes in the law, subject to the approval of Parliament, it is bound by the law once it has been made and cannot use its powers arbitrarily. The rule of law also means that everyone is entitled to access justice and to have their legal rights upheld in court.

Judicial review is a vital part of the justice system in England and Wales. It’s a way for people to:

  • assert their fundamental rights
  • test the lawfulness of decisions made by public bodies
  • seek a remedy when things go wrong

It’s also part of our constitutional balance of powers between the executive, parliament and judiciary, and is a way of upholding the sovereignty of parliament and maintaining trust in government decision-making.

Judicial review allows individuals, businesses and organisations to challenge a public body’s action, inaction or decision. It’s used to test whether a public body (such as the government, local authorities, regulators or public service providers) has acted within its powers and followed the correct procedure.

A judicial review case is concerned only with whether these bodies use their powers in accordance with the law. It does not allow a judge to decide whether a political decision is ‘good’ or correct in any other sense.

There are limits to what decisions can be challenged through judicial review. These limits exist to ensure that there is balance between the rights of individuals in a democracy and the need for effective and efficient government.

There are legitimate questions as to whether improvements can be made to judicial review so that it functions more effectively and keeps the focus on testing the lawfulness of decisions.

However, judicial review must continue to be available to provide a vital check on executive power, whichever the government of the day, and ensure accountability of state authorities. It’s a limited but important legal process in a modern democracy.

Our view

We’re calling on the Independent Review of Administrative Law and the government to ensure the following principles are at the heart of the Independent Review’s considerations of judicial review and remain at the heart of any proposals for reform.

The following points outline fundamental principles that the Independent Review of Administrative Law must protect and enhance.

Maintaining checks and balances

The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the law.

Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be weakened.

Its essential contribution to upholding the rule of law and principles of democracy within the broader constitutional system must not be diminished.

Guaranteeing that it remains an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators according to the laws made by parliament must be a cornerstone of any possible reform.

Judicial independence

Judicial review brings law and politics into close contact. A mature democracy must be prepared to deal with these tensions.

Judges must be free to exercise their duties in judicial review without fear or favour, away from political considerations and criticism, and without being assumed to have an agenda beyond their role in upholding the law, so that they can fulfil their constitutional role and effectively enforce the rights of individuals and organisations.

Eligibility

Judicial review is concerned with decision-making by government, public bodies and regulators, and so must be available to all who are affected by those decisions.

This includes citizens and non-citizens, when relevant, such as immigration cases or when a company has business interests in the UK.

Organisations such as charities or trade unions should also be able to act, within reasonable limits, in the interests of the people, bodies or issues they represent by initiating or intervening in judicial review claims.

Accessibility and affordability

There should not be excessive procedural hurdles which act as a barrier to bringing a claim. The need for prompt resolution and sufficient opportunity to pursue a claim must be appropriately balanced.

To be fully accessible, bringing a judicial review claim must also be affordable. Where individuals lack their own financial means, adequate levels of legal aid must be provided to ensure equal access to the courts to enforce their rights. Costs awards and court fees must not be so punitive or unduly burdensome that they prevent claims being brought.

Scope

As judicial review concerns decisions made by public bodies, it often touches on decisions which may be political or seen as political. As the remit of the state has expanded, so too has the breadth of decisions subject to judicial review.

It is not the role of courts to second guess political decisions and judicial review should not encroach upon the legitimate use of state power. Judges are sensitive to this and they can and routinely do make decisions about what is outside the scope of judicial review.

However, there should be no artificial or inconsistent restrictions upon the type of decisions that can be reviewed. Where there are legal questions the court should rightly be able to decide these and certain issues, or categories of issues, should not be precluded from this. Given the imbalance of power between individuals and the state it’s important that people have a meaningful ability to challenge decisions which affect their lives and legal rights to ensure these have been made lawfully.

In order for judicial review to operate effectively as a remedy of last resort, there must be adequate alternative mechanisms in place for people to assert their rights.

Effective remedies

The circumstances of judicial review cases are wide-ranging. What will be a fair outcome in one will not necessarily be so in another.

Judges must have a range of remedies at their disposal and discretion to award these to ensure that justice is meaningfully done.

The Independent Review of Administrative Law has been given a very important task. We will be engaging with the members as the review goes on to ensure the above six principles are central to their considerations.

What we’re doing

September 2020 – we held a roundtable of expert solicitors to discuss the Independent Review of Administrative Law’s terms of reference and develop our list of fundamental principles.

Get involved

We're conducting a survey to inform our response to the Independent Review of Administrative Law’s call for evidence. This will close on 8 October.

We're also looking for case studies of where judicial review has been used to protect individual rights. If you have a client that would be willing to share their story, email our press officer, Harriet Beaumont, at harriet.beaumont@lawsociety.org.uk.