The future of judicial review: are changes afoot?

Posted: 25/08/2020

On 31 July 2020, the Government launched its Independent Review of Administrative Law which will be considering the future of judicial review, a legal mechanism through which decisions of public bodies can be challenged in the courts.

The review is long-expected, having been trailed in the Conservative Party’s 2019 election manifesto. This promised that a Conservative Government would ‘look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people.’ and would ‘ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or create needless delays’. It is thought that the Government’s defeat in the two Brexit judicial reviews brought by Gina Miller is likely to have focused attention on judicial review reform. 

The review will be chaired by Lord Faulks QC who has written on judicial review, including earlier this year when he commented on the Miller (No 2) case that ‘The decision to prorogue Parliament, however questionable it might have been, was the exercise of a clear prerogative power, the merits of which are the stuff of politics not law’. In that article, he suggested that legislation to protect prerogative power ‘may be the only way to limit the courts’ incursion into the political territory’.

What is it looking at?

The review will consider:

• whether the terms of judicial review should be written into law
• whether certain executive decisions should be reached by judges
• which grounds and remedies should be available in claims brought against the Government
• any further procedural reforms to judicial review, such as timings and the appeal process.

As part of its consideration of procedural reforms, the review will assess whether such reforms to judicial review are necessary ‘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; (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.’

Whilst reforms to judicial review have been implemented in the recent past, the review appears to have the potential to elicit more sweeping reforms.

What could it mean for charities?

So what does this mean for charities and civil society organisations? The most notable potential change for those organisations is in relation to a review of standing. ‘Standing’ relates to who can bring a judicial review claim. Under the current rules, in order to be allowed to challenge a decision using judicial review, an organisation must have ‘standing’ meaning that it is either affected by the decision, or has sufficient interest in the issue. If standing were limited to those directly affected by the relevant decisions, it could prevent expert groups from bringing cases, particularly in circumstances where directly affected individuals may find it harder to bring a claim themselves. This is likely to be of concern to those charities that have used judicial review as an effective tool for meeting their charitable objectives. For example, the Public Law Project successfully challenged a statutory instrument that would have made changes to legal aid eligibility; Which? has used it to challenge product safety issues; and more recently Client Earth and the Marine Conservation Society sought to challenge a statutory instrument made under the EU Withdrawal Act in relation to protection for seas and wildlife in the UK. While the latter claim was unsuccessful, the two charities involved have said the decision will allow them to bring a future challenge if the new regulations are used to adapt or manage UK marine or wildlife conservation sites in a manner that is not consistent with the current rules.

What next?

It is still early days but the Independent Review of Administrative Law is expected to report later this year and charities may want to keep up to date with the recommendations and any future developments flowing from them.

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