On 31st July 2020, the government announced there would be an independent review of administrative law.
The panel, chaired by Lord Edward Faulks QC, will consider how the process of judicial review may be reformed and will make recommendations to government.
Why the need for Review?
The review follows a commitment by the Conservative party in their 2019 manifesto to 'update' administrative law to 'ensure that there is a proper balance between the rights of individuals and effective government' and 'that judicial review is available to protect the rights of individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays'.
It also follows two recent, high profile, defeats of the government in the courts.
In Miller (No. 1) [2017] UKSC 5, the Supreme Court ruled that Parliament was required to pass legislation to effect the UK’s withdrawal from the EU, while in Miller (No. 2) [2019] UKSC 41, the Supreme Court ruled that the prorogation of Parliament had been unlawful and was therefore void.
Lord Faulks, in a comment piece for Conservative Home, discussed how distinguished legal commentators have very different views regarding the courts involvement in political matters. Some hailed the judgment in Miller (No. 2) as vindication of parliamentary democracy, while others (including him), felt it was an ‘improper extension of judicial power into the heart of politics.’
Terms of Reference
The terms of reference for the Review provide for consideration of the following:
1. The amenability of public law decisions to judicial review by the courts and whether the grounds of public law illegality should be codified in statute.
2. The legal principle of non-justiciability and whether it requires clarification. If so, the consideration of Non-justiciable subject areas.
3. The grounds for and the remedies available in judicial review.
4. Whether procedural reforms to judicial review are necessary to “streamline the process”, with particular reference to consider procedural reforms in certain listed areas including time limits, rights of appeal and costs.
A review of constitutional significance
Whilst some commentators see the Review as a positive development and a chance to rebalance the constitution, others fear that it may lead to reforms that, in effect, do away with the courts’ capacity to hold the government to account. Those commentators believe that the process of judicial review provides a vital check on executive power.
The panel released its call for evidence in early September and is due to report its findings to the government by the end of the year.
You can find a copy of all IRAL responses which have been made public, here.
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