Judicial Review - Reform and maintaining the essential balance between Parliament and the Courts

Judicial review is an important tool enabling the public to hold Government to account. It is increasingly being used, with high profile cases such as the Article 50 challenge led by Gina Miller going all the way to the Supreme Court.  However, the potential for abuse, and concerns that we are not striking the correct balance between accountability and the need for effective government have caused the government to take stock.As the Lord Chancellor recently commented: "Judicial review is of course a vital check on unbridled power, and it is precisely for this reason that we should review how it operates – to ensure that there remains that essential balance between Parliament and our courts."¹In this article, we take a look at the proposed reforms to judicial review and consider whether that "essential balance" will be maintained if the Government gives effect to the recommendations received from its panel of experts charged with examining the issue, as it is minded to do.²

The Independent Review of Administrative Law’s recommendations

On 31 July 2020, the Independent Review of Administrative Law (the Review) was established to examine trends in judicial review and consider any recommendations for reform. The Review was carried out by a panel headed by Lord Edward Faulks QC (the Panel). The proposed reforms include the following:

1. Suspended Quashing Orders

Currently, the remedies available for a successful judicial review application are: (1) a mandatory, prohibiting or quashing order, (2) a declaration or injunction, and (3) damages, restitution or the recovery of a sum due.³  The Panel recommended that the courts be given the further option of making a suspended quashing order, meaning a quashing order which takes effect automatically after a certain period of time unless certain specified conditions are met. 

Cases in which Parliament may wish to ratify the exercise of power

The Panel suggested that suspended quashing orders could be used to give Parliament an opportunity to legislate to ratify the exercise of power under challenge. The Panel noted that in high-profile constitutional cases it would be desirable for the courts explicitly to acknowledge the supremacy of Parliament in resolving disagreements between the courts and the executive. One example cited in the report was the case of R (Miller) v Prime Minister. In that case the Supreme court upheld, by an 8-3 majority, a decision of the High Court that the Government did not have the authority, without parliamentary consent, to trigger Article 50 of the Treaty on European Union.

Cases in which it may be possible to remedy the defect 

The Panel also suggested that a suspended quashing order would be useful in cases such as R (Hurley and Moore) v Secretary of State for Business, Innovation & Skills. The High Court found that the Secretary of State had breached his public sector equality duties to assess whether proposed regulations increasing university fees would prove unacceptably discriminatory on grounds of race, sex or disability. A suspended quashing order could have given the Secretary of State a window in which to properly perform his public sector equality duties.

2. Cart Judicial Reviews

The Upper Tribunal is a superior court of equivalent status to the High Court. However, in R (Cart) v Upper Tribunal, the Supreme Court held that if the decision of the First-tier Tribunal was affected by an error of law, with the result that the refusal of the Upper Tribunal to grant permission to appeal a decision of the First-tier Tribunal was also affected by an error of law, then the Upper Tribunal’s refusal of permission to appeal could – in certain circumstances – be judicially reviewed. This type of application has come to be known as an application for a ‘Cart JR’. 

Cart JRs on immigration cases currently make up the largest category of applications to the Administrative Court. The Panel concluded that the continued expenditure of judicial resources on applications for a Cart JR cannot be defended, and that such applications should be discontinued. 

3. Procedural changes 

The Panel also made a number of procedural recommendations which the Government has decided to take forward:

• The Panel's report concludes that there may well be a case for the removal of the requirement for a judicial review claim to be issued 'promptly'. Currently, a claim for judicial review must be brought promptly and in any event no later than three months after the grounds to make the claim first arose. Therefore, reform will have the result that claims must simply be brought within three months.
• Additionally, the Panel has recommended providing further guidance on intervenors. CPR 54.17 gives the court power to grant permission to any person to file evidence or to make representations at the hearing of a judicial review, and such a person is known as an 'intervener'. The Panel recommended that criteria for when such intervention should be permitted should be published.
• The Government has also expressed an intention to make provision for Replies to Acknowledgements of Service in judicial review. Replies to the Acknowledgement of Service are frequently deployed by claimants, sometimes supported by additional evidence, and there is currently inconsistency as to whether that material is admitted. The Panel recommended that formal provision for a Reply should be made in the CPR.

Our view 

The proposals have been subject to significant criticism, and in particular concerns have been raised regarding the practical implications of suspended quashing orders. However, in general, we thought that the proposals were broadly sensible and more limited in scope than many feared might be the case. They do seem to us to respect the "essential balance" between Parliament and the courts to which the Lord Chancellor recently referred. However, we note that the Government has raised the prospect of further reforms to judicial review⁴  and we are monitoring this area closely. 

Authors: Jon Gale and Louise Duffy. 

1. https://www.gov.uk/government/speeches/lord-chancellor-speaks-at-ucl-conference-on-the-constitution
2. The Government Response to the Independent Review of Administrative Law , at para. 10. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/975301/judicial-review-reform-consultation-document.pdf
3. Section 31 of the Senior Courts Act 1981.
4. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/975301/judicial-review-reform-consultation-document.pdf