Judicial Review: Proposals for Reform

Overview

We are implementing our Manifesto commitment to “ensure that Judicial Review is available to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” The Independent Review of Administrative Law conducted by a panel of experts (the Panel) chaired by Lord Faulks QC was the first step. They have delivered a well-researched and closely argued Report which reflects the diversity of views on Judicial Review. I am very grateful to Lord Faulks and his colleagues for an impressive piece of work undertaken to a tight timetable.

The Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made. The reasoning of decision makers has been replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament.

The Panel proposed two reforms to substantive law: to reverse the effects of the Cart judgment and to introduce suspended quashing orders as a new remedy. I agree with these proposals. I am also interested in exploring proposals beyond these, specifically on ouster clauses more generally, and further reforms to remedies, including a prospective quashing order and clarifying the principles which determine how the courts declare decisions null and void, and having never occurred (the principle of nullity). While expanding on the logic and reasoning of the Panel these additional proposals are in the early stages of development. Nevertheless, at this point I think it is worthwhile to consult on them so we can take into account what I believe will be a very diverse range of views and ideas.

In pursuing the Review’s recommendations, and in proposing additional reforms, my aim as Lord Chancellor is twofold. Firstly, I want to use these reforms to restore the place of justice at the heart of our society by ensuring that all the institutions of the state act together in their appropriate capacity to uphold the Rule of Law. That means affirming the role of the courts as ‘servants of Parliament’, affirming the role of Parliament in creating law and holding the executive to account, and affirming that the executive should be confident in being able to use the discretion given to it by Parliament.

Secondly, I want to preserve the fairness that is inherent in our justice system, a fairness that protects the rights of citizens in challenging Government or other public bodies and which affords them appropriate remedy. This means ensuring that the courts have available to them a flexible range of remedies, allowing cases to be resolved in a manner which is sensitive both to the rights of individual citizens and to the wider public interest.

I believe that the complexities inherent in Judicial Review, and in other constitutional areas, mean an iterative approach to reform is most appropriate. The Panel said in their Report that the Government should think carefully before introducing reforms. That is why I want to focus attention first on the most pressing issues, namely ouster clauses and remedies, before considering whether any broader reforms are necessary. At present I intend these reforms to apply to one reserved matter (our proposal on Cart), and the jurisdiction of England and Wales only, but I am also concerned about the risks of fragmenting the legal jurisdictions of the UK. These reforms must act to strengthen the Union and I am very interested in views from across the United Kingdom. Bringing in views from all sides of the debate is essential in making sure our reforms are the right ones and I look forward to reading and listening to contributions to this consultation.

Robert Buckland

Lord Chancellor

Please find the consultation document and IRAL report below. 

You will also find below a summary of the Government submissions to the IRAL, as well as the majority of the non-Government Department submissions. In order to comply with data protection requirements, a small number of non-Government Department submissions (8) will not be published.