Reviewing Judicial Review: Britain’s Independent Review of Administrative Law

The British government has published the terms of an Independent Review of Administrative Law, to be conducted by a panel of illustrious legal experts, including academics Carol Harlow, Alan Page and Nick McBride:

1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exerciseof a public law power and/or function could be considered by the Government.

3.Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the powerand (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

4.Whether procedural reforms to judicial review are necessary, in general 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.

This is an intelligent document. I do not agree with the premise that judicial review has ‘gone too far’ but if I did agree with the premise I think I would have produced Terms like these. The drafter has a keen grasp of the relevant issues, which are far more complex than much of the public and political discourse suggests. In a forthcoming chapter in the Oxford Handbook of Comparative Administrative Law, for example, I explain the wide variety of factors which have fed into increased judicial review of factual error (download here). Putting the genie back in the bottle would be very difficult.

In my view, the fourth point is the most important. Any attempt to codify the grounds of judicial review or the consequences of illegality is likely to be symbolic at best. The Australian experience (mentioned elsewhere in the Terms of Reference) provides ample evidence that codification designed to limit the scope of judicial review will fail to achieve its purpose. Procedural reforms are more likely to be successful: limiting access to the information which grounds judicial review applications would give judges less to work with and provide fewer incentives to increase the breadth and depth of scrutiny of judicial review. As I have recently argued (here and here), procedure and substance in administrative law are intertwined. Scaling back the duty of candour is likely to be politically and publicly controversial, however, as it would require Parliament to legislate — in essence — that government can refuse to disclose documents in situations where there is an arguable claim that the government acted unlawfully.

Limiting access to the courts might be less politically and publicly controversial but more likely, I think, to prompt judicial resistance. Access to the supervisory jurisdiction of the courts is a fundamental feature of the common law tradition: legislative encroachment thereon by the imposition of time limits and restrictions on who can bring a claim may well provoke judges to interpret the relevant statutory provisions creatively. This is, however, far from a sure thing: common law courts are much more sceptical of attempts to exclude judicial review than of attempts to channel judicial review.

As such, the fourth point is where most of the meaningful action will be. This Review will be worth following closely.

This content has been updated on July 31, 2020 at 15:14.