This is not the time for “far-reaching, radical structural changes to the system of judicial review”, but some reform is needed, the Ministry of Justice (MoJ) said today.
It said the aim of the changes proposed in a newly published consultation was to “defend the judiciary from being drawn into political questions”.
The consultation follows the report of the independent panel of experts led by former justice minister Lord Faulks QC, and goes further than it recommended.
The review said there have been occasions when the courts “may be thought” to have gone beyond exercising a supervisory jurisdiction and wrongly decided to regard as justiciable certain exercises of public power.
It would be legitimate for Parliament to correct these, but the panel recommended against “comprehensive or far-reaching legislation”, preferring instead legislation in response to particular decisions.
It stressed too that “the great majority of cases involve the straightforward application of well-established judicial review principles”.
In response, the MoJ said there was a case for “targeted, incremental change”.
It said: “The report provides a convincing analysis of a steady expansion of judicial review, and growing trends where judicial review is used in a way which seems to go beyond its traditional role as a supervisory jurisdiction…
“The government agrees with the panel that these developments have been spurred on both by Parliament and the courts themselves, and indeed it is right for the courts to have a part in such developments.”
The panel recommended two immediate reforms. First, removing so-called Cart judgments to prevent appeals in the Upper Tribunal being subject to judicial review in the High Court. Out of 5,502 such cases analysed by the panel, only 12 were upheld.
The Ministry of Justice said: “Cart judicial reviews, which stand hardly any chance of success, were found to have led to delays with the swift processing of immigration and asylum cases, with last-minute challenges often made to frustrate the removal of people with no right to be in this country.”
Second, the panel said the courts should have the power to suspend quashing orders, rather than having them take effect immediately, which risked “rushed policy solutions”.
Under the proposals set out in the consultation, a court could set conditions and the quashing order would only take effect if these were not met after a certain period of time, allowing time to remedy the defects.
However, the MoJ has gone further than recommended by the panel by consulting on further issues, while stressing that it was doing so “at an early point in their development and [we] are very aware that certain proposals will need further iteration, before we can consider bringing forward legislation”.
- Ensuring ouster clauses – which define the bounds of the court’s jurisdiction in certain issues – are given proper effect. “This allows Parliament to determine areas which are unsuited to legal accountability, while still maintaining vital checks through parliamentary scrutiny,” the MoJ said.
- Introducing wider options for remedies, allowing judges to order a remedy to be prospective-only in nature, rather than fixing “past errors”;
- Defining exactly how and when a use of power is automatically ‘null and void’; and
- Proposals to make procedure more efficient, including removing the ‘promptness’ requirement (but not the three-month time limit) “to make space for pre-trial resolutions”, allowing parties to agree to extend the time limit for claims being brought, and developing criteria for allowing intervenors.
Lord Chancellor Robert Buckland said: “We must seize this opportunity to restore a proper balance between the institutions that have been so integral to our success as a nation – to protect the rights of individuals, our vital national security and effective government.
“These essential reforms will and preserve the integrity of judicial review for its intended purpose: to hold the government to account, apply the intent of Parliament, and protect individuals.”
The consultation is part of the government’s wider Commission on the Constitution Rights and Democracy, which includes the ongoing independent review of the Human Rights Act (HRA), and the Royal Commission on the criminal justice system, which the MoJ said would launch this summer.
The Faulks review argued that codification – a statutory formulation – “might add legitimacy to judicial review”. This might also help “to set boundaries to judicial interpretative expansion”, it said.
The HRA was outside the terms of the review, but it said any legislation passed on judicial review would be of limited effect unless changes were also made to the HRA.
“The Human Rights Act has resulted in an increase in what is now regarded by the courts as justiciable. Any reforms will need to take this into account.”
The Faulks review urged the government not to legislate on the issue of standing, and instead encourage defendants and the court to raise it.
Except Cart reviews, the panel did not consider immigration law, the source of more judicial reviews than any other area, noting that “the law in relation to immigration is the subject of a great deal of work in government”.
The review told judges there was a “continuing need” for them to respect Parliament.
“This is rendered easier where there is evidence of real parliamentary scrutiny… We do, however, acknowledge that the excessive use of framework bills, where much is left to regulation, is much less reassuring.”
It concluded: “Respect should be based on an understanding of institutional competence. Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action.
“Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”