Reviewing Judicial Review: The Faulks Report

The UK’s Independent Review of Administrative Law was completed earlier this year. The Faulks Report was published today. Although the UK government may try to suggest otherwise, the headline is that the Panel does not think significant reforms of judicial review are appropriate.

Chapter 1 addresses the possibility of codifying administrative law. (You can see my submissions to the Review on this point here.) The Panel’s conclusions were as follows (para. 1.43):

•Judicial review is considered an essential ingredient of the rule of law in the care of an independent judiciary.

•Judicial review is an essential element of access to justice, which is a constitutional right and also a right protected by the European Convention.

•The ability of the courts to interpret and apply the law in individual cases should not be restricted.

•A statutory formulation might add legitimacy to judicial review.

•It might also help to set boundaries to judicial interpretative expansion.

•A statutory formulation of judicial review will be interpreted as operating in the framework of the common law.

•Statutory (or regulatory) abrogation of judicial review can only be excluded by the most clear and explicit words in statute and will not be implied.

•On balance, little significant advantage would be obtained by statutory codification, as the grounds for review are well established and accessibly stated in the leading textbooks.

•But codification might make judicial review more accessible to non-lawyers

It is hard to read this as anything other than a defence of the status quo.

Chapter 2 concerns justiciability. Here the Panel recognized that Parliament could legislate to modify the law relating to justiciability (which, over the years, has eroded judicial ‘no-go’ zones) but urged Parliament not to:

2.96.However, we would recommend that Parliament not pass any comprehensive or far-reaching legislation in this area, but instead legislate in response to particular decisions. The draft Fixed-term Parliaments Act 2011 (Repeal) Bill might be regarded as an example in this respect, reacting as it does to Miller 2. (As might other reversals of particular decisions –such as Cart –that will be recommended in the next Chapter.)

2.98.However, the Panel would notrecommend any of the broader options set out in the previous paragraph. We acknowledge the force of the submissions to us, the majority of which were againstlegislation. While the Panel understands the government’s concern about recent court defeats, thePanel considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally.

2.99.Broader legislation in this area that purported to roll back certain developments in the law on non-justiciability would be regarded as amounting to an “ouster clause” and while the use of such a clause to deal with a specific issue could be justified, it is likely to face a hostile response from the courts and robust scrutiny by Parliament.

Chapter 3 addresses the possibility of narrowing the existing grounds of review, prompted by concerns about judicial overreach and the uncertainty (given the open-ended nature of grounds of review) of predicting whether a decision will survive review. But the Panel was nonplussed (at para. 3.18):

It seems to us that alternative solutions to any potential problems of judicial overreach and uncertainty created by the current state of the law on the grounds of judicial review must come from the courts, and the courts should be encouraged to do what they can to address these problems

The Panel does recommend legislation to overturn the UK Supreme Court’s decision in R (Cart) v Upper Tribunal — no doubt to the joy of lawyers and judges who have struggled to apply Cart — but in no way can this be considered a wholesale repudiation of the current state of the law.

Another interesting observation in this Chapter is on the possibility of giving the courts the power to suspend quashing orders (at para. 3.59):

We think that Parliament should legislate to reverse the UK Supreme Court’s decision in Ahmed on this point and give the courts the option, in appropriate cases, of making suspended quashing orders. Such legislation would not involve any fundamental breach with the principles underlying the common law of judicial review. The common law’s adherence to the “metaphysic of nullity” has never been more than half-hearted, driven as it has been less by considerations of principle and more by policy concerns to limit the operation of legislation ousting judicial review or to preserve people’s abilities to mount collateral challenges under the civil and criminal law to the lawfulness of administrative action.

Again, this is hardly a wholesale reform (and, indeed, one which judges might be tempted to undertake themselves: see the commentary at paras. 3.60-3.67).

Chapter 4 relates to procedure. Notably, the Panel avoided dealing with the issue of costs, as it was too complex to address in the time available (at para. 4.10), but noted the access-to-justice concerns raised by the cost of judicial review (at para. 4.14).

Again, the Panel shied away from wholesale reform. It summarized its review of the submissions and available evidence as follows:

•While there has been an exponential increase in judicial review claims being made to the courts since the 1970s, the most recent evidence shows that it is at a similar level to that recorded in the mid-1990s (i.e. between 3,000 and 4,000).

•There is also evidence that claims are decreasing.

•In terms of the effectiveness of the permission stage as a filter of claims for judicial review, there was good evidence to show that significant numbers of claims fell away and that for the most part, judges’ refusals of permission on the papers did not lead to a high number of re-applications for permission with a hearing.

•The grant of permission also led to significant numbers of claims that had been found to be arguable being settled without the need for a substantive hearing.

•The number of cases that went to a substantive hearing were a very small proportion of the claims made (and a small proportion of those permitted to proceed).

•A higher proportion of claims were successfully defended than were made out.

•The evidence did not suggest that large numbers of claims lacking merit claims were being allowed to proceed.

•The judicial review pre-action protocol procedure is operating as a significant means of avoiding the need to make claims and for valid cases to be considered and settled by defendants, as well as identifying claims which were not arguable.

The Panel does not recommend legislation to restrict standing. Rather, the Panel states (at para. 4.99) that government departments should do a better job of arguing about standing in court:

We point out that if the courts’ current broad approach to standing is proving problematic for government bodies, it is always open to defendants in judicial review proceedings to do more to challenge the standing of claimants to bring such proceedings than they perhaps do at the moment. Given the jurisdictional importance of standing to the courts’ ability to consider a claim for judicial appeal, we would also encourage the courts to address expressly the issue of standing in proceedings that are brought before them, regardless of whether that issue is raised by the parties.

The Panel took a harder line on interventions, suggesting that criteria should be developed (at para. 4.108) and also suggested that the duty of candour imposed on respondents in judicial review litigation should be clarified with a view to making its operation more proportionate (at paras. 4.130-4.132, though here apparently some members of the Panel were relatively sanguine about the scope of the duty: at para. 4.131). As to time limits, the Panel was not at all persuaded that these should be tightened, rather, if anything that they should be loosened (at para. 4.148). The Panel summed up its analysis as follows (at para. 4.149):

Our conclusion is that we have found it difficult to identify any aspects of the law in this area which are open to being clearly improved. This conclusion should not be regarded as surprising. This is an area that has been subjected to repeated scrutiny, and significant improvements to the law from further reforms could be expected to be difficult to achieve. We wish to make it clear that we would certainly not favour any tightening of the current time limits for bringing claims for judicial review. The arguments made by respondents to our call for evidence that such a move would be counterproductive and would also have serious effects on access to justice for some of the most disadvantaged in society are clear and compelling

On issues relating to procedure, therefore, the Panel was not even particularly inclined to tinker around the edges and was, indeed, minded to make judicial review more accessible, not less.

Lastly, Chapter 5 addresses the “territorial dimension” arising from the fact that judicial review is a devolved matter in Northern Ireland and Scotland but not in Wales (although in substance little separates the approach to judicial review taken in the different parts of the United Kingdom). Here, the Panel considered it necessary to be sensitive to the territorial dimension (at para. 5.48):

We agree that it would be highly undesirable were statutory intervention to result in a “dual” or “two-tier” system of the kind described in the submissions we received. Among the questions such a system would raise would be where the dividing line between “UK wide” and “other” matters was to be drawn, bearing in mind that they do not exist in separate watertight compartments, and whether different matters could be combined, and different respondents joined, in the same proceedings. To be avoided is a system which is more complex and uncertain than the existing system, which has all the advantages of familiarity and relative freedom from technicality.

There were fears that the Faulks Report would lead to wholesale reform of judicial review in the United Kingdom, sheltering public bodies from judicial oversight. Happily, those fears have not been realized. Far from it.

It would probably be an overstatement to suggest that the Faulks Report is a celebration of judicial review, but it certainly highlights the importance of the judicial review jurisdiction as a backstop against misuse or abuse of power by public bodies. The last paragraph of the Introduction captures, I think, the general mood of the report as a whole. The Panel cites Professor Richard Mulgan’s scholarship on accountability:

Judicial hearings increasingly require the government to disclose publicly what it has done and why; they allow members of the public the right to contest such government actions, and they can force the government into remedial action. Indeed, an effective, independent judicial system is a fundamental prerequisite for effective executive accountability.

And states, simply: ” The Panel agrees” (at para. 40).

This content has been updated on March 18, 2021 at 15:05.