Judicial review reform

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.

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

Independent Review of Administrative Law

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

It considered a range of aspects of judicial review, including:

  • whether the grounds of judicial review should be written in statute
  • the types of powers and decisions that are subject to judicial review
  • available remedies
  • procedural requirements

We submitted our response to the review’s call for evidence in which we argued that judicial review is working well. We do not believe there is a need for fundamental reform but outlined some areas where improvements can be made.

The review’s report to government was published in March 2021.

It recommended:

  • 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, and
  • to give the courts a power to award suspended quashing orders

The panel chose not to make recommendations about:

  • codification
  • non-justiciability
  • the grounds of review

Judicial review reform consultation

Alongside the Independent Review of Administrative Law’s report, the Ministry of Justice has launched a government consultation which seeks views on a number of proposals.

These include the recommendations made by the review on reversing the Cart judgment and introducing suspended quashing order.

It also includes additional proposals:

  • requiring the courts to give greater effect to ouster clauses in legislation
  • creating a presumption or requirement that any quashing orders are suspended
  • introducing prospective-only orders which might then be the presumed or mandatory remedy in relation to statutory instruments
  • inviting the Civil Procedure Rule Committee to consider various procedural changes including on time limits and interveners

Find out more about the judicial review reform proposals on the government website

The consultation closes on 29 April. We'll respond to the consultation and our response will be published in due course.

Our view

Judicial review is an important part of our constitutional balance of powers between the executive, parliament, and judiciary.

It's 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.

What we’re doing

October 2020we responded to the Independent Review of Administrative Law call for evidence on a range of aspects of judicial review

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 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.

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