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Ministry of Justice Letterhead The Right Honourable Robert Buckland QC MP Lord Chancellor & Secretary of State for Justice Sir Bob Neill MP Chair of the Justice Committee House of Commons MoJ Ref: 86346 SW1A 0AA 17 March 2021 Dear Bob, INDEPENDENT REVIEW OF ADMINISTRATIVE LAW I am writing to let you and your Committee know that the Independent Review of Administrative Law has now concluded its work and the Panel’s report has been submitted to Ministers. Despite the circumstances under which the Panel worked, with the majority of their discussions having to take place virtually, they have produced an excellent, comprehensive report. I believe it goes much further than previous reviews in the use of empirical evidence and in consideration of some of the wider issues of Judicial Review, such as the evolving approach to justiciability and the arguments for and against codification. The Panel set out a number of recommendations for reform which the Government has considered carefully. I agree with the Panel’s analysis and am minded to take their recommendations forward. However, I feel that the analysis in the report supports consideration of additional policy options to more fully address the issues they identified. Therefore, I will very shortly be launching a consultation on a range of options which I want to explore before any final policy decisions are made. The IRAL call for evidence elicited many helpful submissions on Judicial Review and we are not seeking to repeat that exercise. Rather, we want consultees to focus on the measures in the consultation document. They set out our full range of thinking, which is still at an early stage, and respondents’ contributions to the consultation will help us decide which of the options to take forward. The consultation will last for six weeks, during which we will hold a series of roundtables and webinars between officials, representatives of the legal sector and others. I would be very happy to discuss the rationale for our proposals with you and your Committee should you think that would be worthwhile. Yours ever RT HON ROBERT BUCKLAND QC MP T 020 3334 3555 E https://contact-moj.dsd.io/ 102 Petty France F 0870 761 7753 www.gov.uk/moj London SW1H 9AJ Judicial Review Reform The Government Response to the Independent Review of Administrative Law Date of publication: March 2021 CP 408 Judicial Review Reform The Government Response to the Independent Review of Administrative Law Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty March 2021 CP 408 © Crown copyright 2021 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/official-documents Any enquiries regarding this publication should be sent to us at [email protected] ISBN 978-1-5286-2477-0 CCS0321152500 03/21 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office About this consultation Duration: 18/03/21 to 29/04/2021 Enquiries (including Judicial Review Reform requests for the paper in an Ministry of Justice alternative format) to: 102 Petty France London SW1H 9AJ Email: [email protected] How to respond: Please send your response by 29/04/2021 by using the online portal: https://consult.justice.gov.uk/judicial-review- reform/judicial-review-proposals-for-reform By mail to: Judicial Review Reform Ministry of Justice 102 Petty France London SW1H 9AJ Or by email to [email protected] Additional ways to feed in A series of webinars is also taking place. For further your views: information please use the “Enquiries” contact details above Response paper: A response to this consultation exercise is due to be published by summer 2021 at: https://consult.justice.gov.uk/ Page 5 of 60 Page 6 of 60 Contents Foreword ............................................................................................................................... 8 1. Introduction .................................................................................................................. 10 The Independent Review of Administrative Law’s recommendations ............................... 10 Further proposals ............................................................................................................ 11 2. The Constitution and Judicial Review ........................................................................... 13 3. Targeted incremental change....................................................................................... 19 4. The Independent Review of Administrative Law’s recommendations ........................... 24 Reversing Cart ................................................................................................................ 24 Suspended quashing orders ............................................................................................ 25 5. Additional proposals for consultation ............................................................................ 28 Remedies ........................................................................................................................ 28 Ouster clauses ................................................................................................................ 38 6. Procedural reform ........................................................................................................ 43 7. Economic impacts ........................................................................................................ 47 8. Equalities impacts ........................................................................................................ 49 9. Conclusion ................................................................................................................... 51 10. Summary of consultation questions .......................................................................... 52 11. Contact details/How to respond ................................................................................ 55 Page 7 of 60 Foreword 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 Page 8 of 60 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
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