The rise and fall of judicial review in the United Kingdom (Part II)

The Judicial Review and Courts Bills 2021: J'accuse?

Judicial Review Reform: The Findings of the Report of the Independent Review of Administrative Law (IRAL)

The IRAL Review Panel faced a daunting task- broadly drafted terms of reference and a short and strictly applied timetable in whichto report. The report is quite lengthy, but succinct in its approach and findings which rejected any significant changes and recommended only two areas of reform. The panel was sceptical of the merits of codification of this areaof law. It noted that since statutory formulations would remain interpreted within the common law, little advantage might be gained for codification andnoted that the various submissions to the Panel did not see that codification would bring about significant change.

On the technical subject of any changes to justiciability, the panel noted that the courts had eroded any historical exceptions of immunity preferring to open judicial scrutiny. The Miller[1] litigation seemed to be a one-off rather than of constitutional significance. These cases are the exception rather than the rule. In any event anon-justiciability clause might be problematic in terms of human rights compatibility. The panel accepted that parliament had jurisdiction over mattersraised by judicial review, but refrained from any limitations being placed onjudicial review. Such a statutory restriction might be complex and difficult inthe light of cases on ouster clauses.

The panel suggested that Cart [2] JR applications might be stopped. The Cart case established that the administrative court can judicially review the decisions of an Upper Tribunal. The power inquestion is the Upper tribunal’s power to refuse to grant permission to appeal against a decision of a First -tier Tribunal. The panel found that there was evidence of a high number of applications for review under the Cart principles, but with a low success rate.

The second suggestion is that courts should be accorded power to make a suspending quashing order when certain conditions were met. This should improve the flexibility judicial review, although the courts have always insisted that remedies were and are discretionary, particularly on the facts of cases.

Finally, the review panel considered asylum and immigration cases. In general there was little evidence of unmeritorious cases being allowed to proceed. Also rejected were changes to the rules of standing,or time-limits which had been reformed relatively recently.

The Panel noted (para 2.94, p. 55) that:“in the past 40 years the courts have - in some cases - decided to regard as justiciable certain exercises of public power (or relating to those exercises)that should have been regarded as non-justiciable”. The Panel also discussed what they considered to be “Judicial overreach” (para 3.19 p. 61). Judicial overreach and claims that this needs to be addressed is the main rationale in the Government’s response to the Panel’s report. It is the main reason behind the Judicial Review and Courts Bill 2021, recently published before the summer recess..

Judicial Review and Courts Bill 2021

There are two clauses of the Bill relevant to judicial review through proposed amendments to the Senior Courts Act 1981. The first is Clause 1 that addresses the question of judicial power to grant quashing orders. This is where the public body has acted unlawfully and with the quashing order the decision is no longer valid and it has no effect. The quashing order means that the decision of the public body has been overturned because of the illegality. Clause 1 grants the judge, the power to suspend a quashing order, namely, to delay its implementation, and if appropriate limit its retrospective effect. The Clause would require a court to consider several factors, suspending the order allowing it to be considered as valid, notwithstanding that it has been held to be invalid. The discretion may be exercised according to five factors, which are not exhaustive:

• The nature and circumstancesof the error – whether it is minor or substantial;

• The potentially disproportionate effects in exercising or failing to exercise such a powerunder the Act;

• The interests of the claimant and third parties;

• The parties who in good faith rely or have relied on the act in question- such as whether they could conduct their business;

• Whether the defendant has taken any action or proposes to take action or made undertakings to the court.

The court can consider other additional factors that may have to be taken into consideration, in the circumstances of the case. Reaction to the proposals have been mixed. Some commentators expected more substantial changes and have been surprised at the narrow remit of the proposed changes, believing that worst might have come about. Instead of curtailing judicial review, the powers under clause 1 may paradoxically increase judicial discretion by introducing a new suspensory power of relief, which replaces an arguably limited and rarely used discretion.

The second, clause 2, addresses the Cart decision. The Review Panel had found that applications to the administrative court for Cart cases of judicial review form the largest category of applications to judicial review for the court. In 2015-19 there were 779 applications for judicial review. The main substance of such cases covers areas such immigration, naturalisation, and detention issues, including cases of human trafficking There are also town and country planning cases, cases involving homelessness and some family cases which together account for the main subject areas of Cart decision reviews.

Clause 2 purports to oust the supervisory jurisdiction of the Administrative Court where permission to appeal from certain first -tier Tribunal decisions has been refused. The mechanism under Clause 2 is an ouster clause. The essence of clause 2 is to place restrictions on the availability of judicial review. Effectively this is a super “ousterclause”, intended to address the Anisminicruling, recently followed by the Supreme Court in the Privacy International case (2019), in its coverage to include both “decisions” and “purported decisions”. This is subject to one caveat namely if the circumstances of the case where the main decision under challenge involves some breach of natural justice such as bias, or bad faith, then judicial review might still be available.

Account should also be taken of the wide-ranging nature of modern legislative enactments, a point noted in the independent review. Broadly written and often vaguely defined, modern legislation is highly detailed and often supported by a multitude of statutory instruments. The pandemic and Brexit have both, understandably, led to greater executive powers and more Henry VIII clause (namely allowing delegated legislation amending primary statute). Parliamentary scrutiny of such major and complex legislation has often been cursory or non-existent. Accompanying legislation to broader police powers, requirements for an ID identity for elections; changing the rules on immigration and so on, have eroded long held civil liberties and shifted powers to the government of the day through limited Parliamentary scrutiny. Many areas of scrutiny, – especially ones that fallwithin the Cart applications, may impact on the most vulnerable and poor members of society.

Interpreting clauses 1 and 2 will fall tothe judges. This will obviously provide another layer of complexity, uncertainty, delay and potentially raise costs. Dicey, writing about the relationship between Executive and the judges. While accepting that Parliament as “supreme legislator”, Dicey cautioned that the “moment Parliament has uttered its willas a lawgiver, that will become subject to the interpretation put upon it by the judges of the land, and the judges who are influenced by the feelings of magistrates no less then by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which wouldnot commend itself either to a body of officials or the Houses of Parliament, if the Houses were called upon to interpret their own enactments[3]”.

Conclusions

Where is the evidence that there has been or issubstantial judicial overreach? Policy making is best with evidence based, peer reviewed, published assessments that are carefully analysed. In fact the evidence for judicial overreach is thin and it is tempting to conclude that controversial decisions, especially ones that the Government may not like or have lost are being too readily confused with judicial overreach. There are many cases where judicial review has been denied, the rationale and their range remains largely ignored[4] in the pursuit of the shibboleth that judicial overreach has been proven beyond reasonable doubt.

Judicial discretion, in many cases is granted through words or terms found within legislative enactments, whether statutory instruments or primary legislation. Too often such powers are granted as a default mode. Legislation is often passed in haste, and as mentioned often poorly scrutinised, resulting in over complex and technical outcomes. Policy issues may be made deliberately vague as resolving policy differences with government hard to reconcile or clarify. Rather than judicial overreach, the judges are placed in an invidious position of making sense of complexity. This is a plausible explanation of the reasoning in the majority of cases where judicial review is refused or denied maybe explained [5]

It would be surprising, given current political rhetoric, if the government decides not to push for other reforms to judicialreview. Tactically, for the time being it has decided to exercise some self-restraint at this early stage in the parliamentary process well before the half-way mark of the lifetime of the present Parliament. There is widespread belief that further changes are on their way, an illustration of the heightened anxiety about the future of judicial review. We have yet to hear from the independent panel on the Human Rights Act and any proposed changes to human rights will bewatched with interest. So, too, will any inquiry into the future role andcomposition of the UK Supreme Court.

As far back as 1969, the Law Commission had suggested that a Royal Commission should be set up to undertake a comprehensive review of administrative law. The recommendation was rejected by the Government of the day. However, a limited review of procedural reform was agreed in 1976 and undertaken by the Law Commission[6] whose ideas later proved influential. Thereafter, a consultation paper followed by an ad hoc review undertaken at All Souls Oxford, and proved influential [7]. In 1994, a further Law Commission report was published and proved influential [8] again important to the future of administrative law.

The current Government has set a precedent by taking forward clauses in the proposed Bill associated with the party politics of the day and ideologies of the moment. Future governments may find an irresistible temptation to meddle further. A more nuanced approach would have invited the Law Commission to consider administrative law, including human rights, and make recommendations accordingly.

In two respects the Judicial Review and Courts Bill sets new directions, broadly in response to critics of judicial review, and a strong lobby for change, based on the presumption that it has been proven that judges are and have overreached their powers. The first, to limit the retrospective effect of quashing orders. The second, to reverse the effect of the Cart decision, a Supreme Court decision in 2011. Under the Cart route it is claimed that because the success rate was comparatively low and the cost high at over £3000,000 per year, such money may be “better spent on dealing with outstanding cases in the High Court. Clause 2 has all the elements of being a template - a device - that the Ministry of Justice admitted could “serve as a framework that can be replicated in other legislation”. This goes against the Review Panel’s expectation that judicial self-restraint, was a suitable way to address any concerns about “judicial overreach” and that legislation is not required. While the clause is targeted at Cart, it in effect seeks to overcome long-standing decisions on ouster clause in the cases of Anisminic in 1969 and more recently in the Privacy International case. This may be seen as a clever and bargain basement three for one, but clause 2 raises the spectre of more to follow? Are there alternatives to modifying judicial review? In the key areas’ immigration and asylum, the law is technical, complicated and in need of simplification. Many cases for judicial review come from the most vulnerable – the poor, the asylum seeker and the dispossessed. Poor policymaking based on short term political goals within five-year Parliaments may be at work has meant that evidence-based policy has been replaced by political choices. Policy issues are not always well resolved in legislation, leaving judicial discretion to fill in the gaps. One way forward would be to simplify, consolidate and avoid too many changes based on the pressures of short term political life.

Maitland, noted in his Constitutional History tracing the development of judicial independence that “ … the Chancery court had never been popular, and at times had been regarded as unconstitutional, escaped, Barebones’ Parliament attempted to abolish it but even Cromwell found that the Chancery lawyers were too muchfor him [9]”.

Ironically, it is political self-restraint that is best invoked to limit party political pressures or the predilections of the government of the day or its supporters. Under this sensible advice much heed should be paid [10].The government’s large overall majority influencing Parliamentary sovereignty provides the necessary legal powers to pass the Bill [11] or any Bill that they may think fit. Party political excursions, however, into judicial discretion may have unintended consequences and may yet lead to fundamental alterations in the relationship between an independent judiciary and the state. This might “take back control”, but have no doubt this is a sign of increasing executive power. The UK’s apparent acceptance in international and domestic law of the principles of the rule of law and what that entails [12] may suffer reputational damage [13]. The consequences for the future of the legal system, might be more far reaching than the inclusion ofonly two clauses in a Bill that may be the precursor of more to come.

[1] R ( Miller) v Secretary ofState for Exiting the European Union [2016] EWHC 2768 and [2017] UKSC 5.( hereinafter Miller 1).

[2] R( Cart) v Upper Tribunal [2012] 1 AC 663.

[3] A.V Dicey, Introduction tothe Study of the Law of the Constitution 8th edition London:Macmillan Press, 9.273.

[4] Recent examples on challenges to COVID 19 sweeping restrictionssee; Dolan and others, R(On the applicationof) Secretary of State for Health and Social Care and another [2020] EWCA1605, and the Supreme Court decision reversing the Court of Appeal’s decision on the expansion of Heathrow Airport see: R(Friends of the Earth et al) v Heathrow  AirportLtd. [2020] UKSC 52

[5] Paul Craig,” Judicial Review, Methodology and Reform” SSRN publication 3875313, Summer, 2021

[6] Law Commission, Report on Remedies in Administrative Law (1976) London: Law Commission no 73.

[7] See: Report of the Committeeof the Justice-All Souls Review of Administrative law in the United Kingdom –Some Necessary Reforms (Oxford: Clarendon Press, 1988)

[8] Law Commission, Administrative Law: Judicial Review and Statutory Appeals (London: Law Commission no 226 ,26th October 1994).

[9] Maitland,  The Constitutional History of England (Cambridge: Cambridge University Press, 1919) p. 312.

[10] Liyanage v R. [1967] AC259.

[11] See A.L Goodhart discussion (1966) 82 LQT 97., as was the case inthe War damages Act 1965 overturning BurmahOil Co. v Lord Advocate [1965] AC 75.

[12] J. Jowell, “ The Rule of Law”, in J. Jowell and C. O’Cinneide,eds/. The Changing Constitution 9th edition (Oxford: OxfordUniversity Press,  2019) p. 9.

[13] Lord Justice Goss,” How can Judges strengthen the rule of law?” Argentina J20 Conference, ( October2018).

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