THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW Chair: Lord Edward Faulks QC Members: Professor Carol Harlow QC Vikram Sachdeva QC Professor Alan Page Celina Colquhoun Nicholas J McBride Date of publication March 2021. CP 407 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 407 © 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 978-1-5286-2460-2 CCS0321143222 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 THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW TABLE OF CONTENTS Introduction ............................................................................................... 5 Chapter 1: Codification ........................................................................... 18 Chapter 2: Non-justiciability .................................................................... 33 Chapter 3: Moderating judicial review ..................................................... 57 Chapter 4: Procedure.............................................................................. 76 Chapter 5: The territorial dimension ...................................................... 112 Conclusions .......................................................................................... 129 Appendix A: The nature of judicial review ............................................. 133 Appendix B: Call for evidence methodology .......................................... 138 Appendix C: Summary of responses ..................................................... 140 Appendix D: Data and statistics ............................................................ 159 Appendix E: List of contributors ............................................................ 188 3 THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW 4 THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW INTRODUCTION About the review 1. In its evidence to the Independent Review of Administrative Law (IRAL), the UK Administrative Justice Institute (UKAJI) observed that the Panel was: “being asked to address fundamental issues concerning the appropriate constitutional place of judicial review, including: whether certain types of executive decisions should be protected, whether appropriate tests of justiciability are being adopted and most fundamentally of all whether judicial review should be placed on a statutory footing and the grounds codified.” For this task the period of time given was “inadequate given the complexity, scope, and importance of the issues”.1 In saying this, UKAJI was expressing the views of a number of those who submitted evidence. The Panel had some sympathy with these views. 2. Ours is by no means the first review of judicial review procedures. In 1969, only four years after it was founded, the Law Commission of England and Wales (the Law Commission) came together with the Scottish Law Commission and the Standing Commission on Human Rights in Northern Ireland to request a Royal Commission to comprehensively review administrative law in England and Wales. The government comprehensively refused the request. There were, nonetheless, two significant outcomes. 3. The Law Commission informed the Lord Chancellor of “public concern” over “problems” with judicial review that in their view required attention as a matter “of considerable importance and even of some urgency”.2 Procedure at the time, being linked to the prerogative writs, was undoubtedly in need of “streamlining”. As the Law Commission observed: “The procedural complexities and anomalies which face the litigant who seeks an order of certiorari, prohibition or mandamus have long been the subject of criticism, whilst the circumstances in which injunctions and declarations are obtainable would also appear to call for review.”3 4. The Commissioners would have preferred to conduct a fuller inquiry into administrative law, covering other complaints procedures such as the newly appointed Parliamentary Commissioner for Administration. Instead, they were restricted by government to judicial review procedure, which was in any event at the top of their agenda. The very welcome practical outcome of their work was the innovative application for judicial review, in which both public law and private 1 Marsons, Sunkin and Konstadinides, ‘The UK Administrative Justice Institute’s submission to the Independent Review of Administrative Law’, UK Constitutional Law Blog, 26 October 2020. 2 Law Commission, Administrative Law, Law. Com. No 20 (1969), 1-2. 3 ibid. There was confirmation in de Smith’s seminal study of judicial review: Judicial Review of Administrative Action (Sweet & Maxwell, 1959). 5 THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW law remedies were available.4 This was introduced in the civil procedure rules by RSC Order 53,5 later revised and then placed on a statutory basis by the Supreme Court Act 1981 (now the Senior Courts Act). We discuss the content in Chapter 1. 5. The Law Commission returned to the subject in the early 1990s, when they chose to restrict themselves to procedural matters in a review of judicial review and statutory appeals. The choice was deliberate. The Commission believed that the substantive grounds for judicial review “should continue to be the subject of judicial development” but that continuing judicial development of the grounds needed to be “facilitated by an effective procedural framework.” 6 Only minimal changes to judicial review were recommended, although a draft bill was included. 6. Judicial review was essentially peripheral to the later Law Commission study of monetary remedies in public law, which includes only a handful of descriptive paragraphs on judicial review. The programme was in any event virtually abandoned in the face of decisive opposition from the government as “key stakeholder”. The Commission’s final report does however contain a substantial consideration of the relationship of damages with judicial review. Noting that “the current regime had significant gaps in it”, the Law Commission came down on the side of a new remedy in damages in judicial review proceedings.7 The gap still remains – but thankfully it is not the task of the Panel to close it. 7. The second response to the 1969 Law Commission initiative was unofficial. It took the form of a committee of the great and good set up in 1978 by JUSTICE in conjunction with All Souls College, Oxford with a remit “to devise practical proposals for reform with the aim of giving administrative law clarity, coherence, comprehensiveness, and accessibility”.8 (This El Dorado, it must be said, has never been attained.) The Committee published a discussion paper in 1981 and its full report on the state of administrative law came in 1988 with three of the eleven chapters devoted to judicial review, the organisation of the courts and standing. The discussion of judicial review is largely procedural, centring on matters such as time limits, discovery and evidence, and leave to apply, rather than on the grounds for review. There is a short discussion of codification, which we reserve for Chapter 1. 8. Conscious that this ambitious attempt to review administrative law took around 10 years, the Panel has been careful to stay within the parameters allocated to us. We did not take our title literally. We rejected suggestions that we should step outside the boundaries of our terms of reference into the wider landscape 4 See Law Commission, Remedies in Administrative Law, Law Com No 73 (1976) and Law Com Working Paper No 40, (1971). The public law remedies were certiorari, mandamus and prohibition; the private law remedies were declaration and injunction. 5 RSC Order 53, SI 1977/1955, SI 1980/2000. 6 Law Commission, Administrative Law: Judicial Review and Statutory Appeals, Law Com No 226 (1994), 2. And see Law Commission, Administrative Law: Judicial Review and Statutory Appeals, Consultation Paper, Law Com No 126 (1993). 7 Law Commission, Administrative Redress: Public Bodies and the Citizen, Law Com No 322, HC 6 (2009-10) Part 2, [2.1]-[2.91], at [2.50-2]. 8 JUSTICE/All Souls Review, Administrative Justice – Some Necessary Reforms (Clarendon Press, 1988), Appendix 2 at 368. 6 THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW of administrative law, though we were aware that this path has been chosen in both Wales and Scotland. In Scotland, the Tribunals and Administrative Justice Advisory Committee set out to produce a snapshot of the administrative justice and tribunals landscape in Scotland as at November 2015, with changes necessitated by devolution and the Courts Reform (Scotland) Act 2014 and Tribunals (Scotland) Act 2014 in mind. The aim was “to help inform future policy making, as well as shape the priorities of any future oversight body in the area”.9 In Wales, administrative justice was the subject of a review conducted by Welsh Universities in 2020 though judicial review was not its central concern and we received a helpful and lengthy submission from