Quasi Judicial Review of Judicial Review?!


07 August 2020

With COVID-19 continuing to dominate headlines, we thought it sensible to highlight an important process which has been set in motion over recent weeks concerning public body decision making.

What is Judicial Review?

Judicial Review is a way for the courts to supervise and examine the actions of bodies exercising public functions to ensure they act lawfully and fairly. 

If a body has not acted lawfully or fairly in the way it has performed (or failed to perform) a public power or duty, the court has a number of powers available to them including quashing (setting aside) the decision, making a mandatory order requiring the body to carry out its legal duties properly or issuing a prohibiting order and restraining the public body from acting beyond its powers. 

Judicial Review is a remedy of last resort; a party needs to have exhausted the public body’s internal procedures first unless there is a very good reason not to have done so. 

What is the issue?

The Prime Minister has accelerated his intentions to reform the way in which the Judiciary can review the Government’s decisions, by convening an Independent Panel to review the Judicial Review process as a whole. The impetus is seemingly following the Supreme Court’s reversal of Mr Johnson’s decision to prorogue Parliament in 2019.

It has long been known that Mr Johnson and his right hand man, Dominic Cummings, are not fond of Judicial Reviews in their current format. Mr Cummings perceiving them in his blogs as a device to obstruct the Government from doing things, whilst Mr Johnson had one of his first major decisions as Prime Minister undermined by this legal tool we currently have at our disposal.

The review was launched on 31 July 2020 purportedly in the hope that the Panel can strike a balance between citizens’ rights and effective governance. Others take a different view!

Who is reviewing Judicial Review?

The Panel conducting the review will be chaired by Lord Edward Faulks QC, who will be joined by:

  • Professor Carol Harlow QC (Barrister at Middle Temple and Emeritus Professor of Law at LSE)
  • Vikram Sachdeva QC (Barrister at 39 Essex Chambers and chair of the Constitutional and Administrative Law Bar Association)
  • Professor Alan Page (Professor of Public Law at Dundee University)
  • Celina Colquhoun (Barrister at 39 Essex Chambers)
  • Nicholas McBride (Fellow at Pembroke College, Cambridge). 

The appointments are not without criticism; lawyers have questioned the impartiality of the peer selected to lead the panel. Lord Faulks, now a cross-bench peer, was previously minister of state for civil justice in David Cameron’s government between 2013-2016. Author, The Secret Barrister, was quoted in the New Law Journal as pointing out that Lord Faulk's was "the right-hand minister to [former Lord Chancellor] Chris Grayling at the MoJ [when] Grayling was attempting to restrict judicial review".

What are they reviewing?

Most importantly, the review will look at whether the amenability of public law decisions to Judicial Review by the Courts and grounds of public law illegality should be codified into statute. It will also consider whether what Judges can and cannot look at should be clarified. 

The review will also consider the grounds and remedies available should claims be brought against the Government in the future, as well as whether more general procedural reforms are needed to 'streamline' the process, for instance including as to timings, disclosure, costs and appeals.

A Government document detailing the Terms of Reference for the Independent Review panel to consider is available.

The Panel intend on using an array of data and evidence (such as case law) to determine whether the proposed reform is justified.

Controversial move? 

Yes; the Review has been heavily criticised by some as an attempt to muzzle a dog that does need and indeed has some teeth in scrutinising Government and in holding it to account. Bar Council chair Amanda Pinto QC, was quoted in the New Law Journal as stating: "We should regard [judicial review] as a prized possession because it enables citizens to hold the state to account effectively and to ensure that it uses fair procedures every day". 

"Without it, the rule of law and separation of powers will be undermined and, without them, we may as well wave goodbye to a functioning democracy. We take pride in our system of judicial review and caution against any unnecessary barrier to the public’s right to challenge their government, so will be very interested to see the results of this independent review."

When will they report?

We understand that the Panel are aiming to produce a report in the next three to four months. The panel will issue the report to the Lord Chancellor who will work with interested departments to determine the publication timelines as well as the Government response. We understand that changes could potentially be implemented as early as next year. 

2021 could be a particularly important year in terms of scrutinising the Government’s actions on issues such as COVID-19, Brexit and latterly proposed reform to the Planning system. So watch this space to see what changes may (subject to challenge!) be brought in and how they might affect bringing and defending of challenges to public body decision-making. 

For more information on our Administrative and Public Law Disputes practice please contact Sara Sayer and Justin Moore.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2020.