Martin Partington: Spotlight on the Justice System

In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.

Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.

Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.

The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.

The Terms of Reference for the Review state that the Review should

• examine trends in judicial review of executive action,  in particular in relation to the policies and decision making of the Government;
• bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
• consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.

More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability  (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).

The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.

Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.

The announcement of the review and links to the Terms of Reference are at https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review

The Supreme Court decision in the Miller case is at https://www.supremecourt.uk/cases/uksc-2019-0192.html