Government's terms of reference for review of the judicial review process

Upon the Government announcing on 31 July a review of judicial review and the membership of the review panel, the Government also published its terms of reference (the “Terms of Reference”) for the review. The review will focus on whether reform to the judicial review process and other aspects of public law decision making is needed (the “Review”). These Terms of Reference give further guidance as to the scope and purpose of the Review, as well as providing insight as to the types of considerations that will be focussed on.

In particular, the Terms of Reference state that the focus of the Review will be to “examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government”. It is clear that the Review is intended to be wide-ranging in its scope, with a note to the Terms of Reference stating that it will consider public law control of all UK-wide and England & Wales powers, whether they be statutory, non-statutory or prerogative powers. The Terms of Reference also make clear that the Review will extend to all cases involving public law decision making and not just the judicial review process.

The particular issues included in the Terms of Reference are considered further below. While an enormous amount could be said in relation to the issues raised in the Terms of Reference, at this stage we have chosen to highlight a few key points.

• Possible codification of aspects of substantive public law
• Possible changes to the law on justiciability
• Consideration of procedural reforms to judicial review
• Comparison with reforms in Australia
• Conclusion

Possible codification of aspects of substantive public law
The Terms of Reference require the appointed panel to consider whether substantive public law should be codified into statute and, in particular, the law on the amenability of public law decisions to judicial review by the courts and the grounds of illegality.

Currently, the substantive law behind judicial review, such as the grounds for bringing a claim, generally stems from the common law. On procedural aspects, legislation such as s31 of the Senior Courts Act 1981 simply regulates the judicial review procedure, rather than being the source of the substantive law.

The notes to the Terms of Reference query whether placing the substantive law on a statutory footing would promote clarity and accessibility in the law and increase public trust and confidence in judicial review. However, for example, were the ground of irrationality to be drafted into statute, then this could give rise to the risk of ambiguity over the meaning of that word and how it is to be applied in the particular legislative and factual context facing the court in a given case. Indeed rather than promote clarity the codification could generate greater uncertainty and hence further litigation. The possibility of codification also raises questions over whether any statutory wording will place limitations on the courts' ability to adapt the law to meet new contexts, compared with the arguably greater scope afforded to it under the common law. It is possible to debate the merits or otherwise of this but it should be noted that this is how the substantive law has generally evolved. Having said that, insofar as there is any focus in the Review on the judges considering issues of proportionality, this has come about through the UK Government's decision as enacted by Parliament to incorporate EU law (at least until Brexit occurs) and the Human Rights Act 1998.

Possible changes to the law on justiciability
The Terms of Reference state that the Review will consider:

1. Whether the law on issues of justiciability should be clarified and whether there are any subjects/areas where the issue of whether the exercise of a public power or function is justiciable, could be considered by the Government; and
2. For justiciable issues: (a) on what grounds the courts should be able to find a decision to be unlawful; (b) whether those grounds should depend on the nature and subject matter of the power; and (c) what remedies should be available in relation to those grounds.

It is striking that the Government has queried whether questions of justiciability might be determined outside of the courts. Issues of justiciability typically involve a court considering whether it has the expertise to reach a judgment on the issue in question. It would therefore be surprising if this question were taken away from judges who are arguably best-placed to consider this particular question.

Regarding the issue at 2(a) above, the grounds of challenge are based on legal principles which the courts have carefully developed over a long period of time. As with the case in relation to codifying substantive public law discussed above, there is a risk of unintended consequences occurring if Parliament seeks to codify what these grounds should be, by creating ambiguity or limitations where they did not previously exist. There is also the question of whether including a list of grounds in statute can stultify the adaptability of the law over time or cause it to fail to keep pace with modern developments. Any codified grounds of review may suffer from having a lack of guiding principles or objectives such as principles of good government and the separation powers as well an absence of fundamental rights considerations, which have underpinned the evolution of these grounds in the common law to date.

The notes to the Terms of Reference refer in the context of justiciability to what is described as a historical distinction between the questions of whether: a) a power has been exercised outside its scope (which has traditionally been subject to judicial review) and; (b) whether a power has been unlawfully exercised even if it is within its scope (which is traditionally not subject to court intervention). Notably, they highlight the Government’s apparent dissatisfaction at how “over the course of the last forty years (at least)” this distinction has “arguably been blurred by the Courts” and argue that unlawful exercise of power is now treated the same as a decision taken out of the scope of power and therefore considered null and void, questioning whether this is the right approach. This is interesting as cases such as Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 which established Wednesbury unreasonableness and was dated over 70 years ago, show that in fact the courts have arguably been grappling with questions of unlawful exercise of power (and not just decisions exercised outside the scope of the power) for a long time.

The Terms of Reference in this context seem aimed at discontent with cases such as R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41, in which the Supreme Court found that the Prime Minister’s advice to Her Majesty to prorogue Parliament for an extended period was unlawful and void. The case involved the Supreme Court determining that even though the Prime Minister’s advice to Her Majesty fell within the scope of his executive prerogative powers, in this instance it was still amenable to judicial review i.e. justiciable. Therefore, the court was able to go on to consider the lawfulness of this exercise of power. This case was hailed by some as a significant clarification as to the limits on the executive’s prerogative powers, however, the Terms of Reference seem to query whether such levels of court intervention are appropriate or should continue. It should be borne in mind that courts considered judicial reviews of the prerogative long before the prorogation of Parliament case.

Given that previous attempts to oust the jurisdiction of the court through ouster or privative clauses have had limited effect in the past, the Review will need to consider carefully any limitations on the courts’ jurisdiction that it recommends be put into place.

Consideration of procedural reforms to judicial review
The Terms of Reference require consideration of whether procedural reforms to judicial review are necessary, in general to ‘streamline the process’ and, in particular:

(a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government;
(b) in relation to the duty of candour, particularly as it affects Government;
(c) on possible amendments to the law of standing;
(d) on time limits for bringing claims;
(e) on the principles on which relief is granted in claims for judicial review;
(f) on rights of appeal, including on the issue of permission to bring judicial review proceedings; and
(g) on costs and interveners.

In particular, the notes consider the “number of procedural issues of possible concern that have been raised over the years” and the opportunity to review the general machinery of judicial review as part of this “comprehensive assessment” of judicial review. Back in 2012-2013, the Government consulted on various proposals for reform of judicial review “to stem the growth in applications for judicial reviews” and implemented a number of changes off the back of that consultation including a reduction in the time limits for bringing certain categories of judicial review claims. Other changes that have been introduced over the years included an amendment to s31 of the Senior Courts Act (by s84 of the Criminal Justice and Courts Act 2015) aimed at restricting relief; in cases where the court considers it “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” then it must refuse to grant relief. Similarly, s87 of the Criminal Justice and Courts Act 2015 appears aimed at deterring interveners by increasing the likelihood of circumstances where they would be at risk of adverse costs orders.

The general direction of reform of judicial review in previous years therefore appears to have been to seek to make claims harder from a procedural perspective. It would be concerning if the Review were to result in tipping the balance of the judicial review system such that the ability to properly seek review of public bodies’ decisions is curtailed unduly.

Comparison with reforms in Australia
A note to the Term of Reference states that the Review will consider the experience in other common law jurisdictions outside the UK, picking out Australia as a key example “given the legislative changes made there”. It is therefore possible that the Review will consider the federal legislation introduced as part of the administrative law reforms in Australia in the 1970s, called the “Administrative Decisions (Judicial Review) Act 1977” as well as various state and territory equivalents introduced subsequently. This legislation was designed to simplify the remedies available to the court and simplify the procedure for judicial review. The federal legislation codified the common law grounds of judicial review into a simple, non-exhaustive list of grounds and conduct that are reviewable. The legislation clarified that both “decisions” and “conduct” are reviewable. It granted a statutory right to reasons for a decision (which was not available previously), amongst other things. The reforms in Australia also established a Federal Administrative Appeals Tribunal which allows for an independent merits review for specified decisions, a trend that has been followed in most states and territories.

It is, however, important to bear in mind that the Australian legislation was introduced in the 1970s, prior to significant developments in modern administrative law, in order to overcome what was then considered in Australia to be a technical, narrow and complex process for seeking judicial review with opaque grounds. There were also specific constitutional limitations in Australia that led to the enactment of the judicial review legislation.

The Australian legislative solution has also not been without criticism. Some commentators consider that codifying grounds and procedures in statute has had a stultifying effect on the development of judicial review compared with a pure common law system. Further, a separate avenue for judicial review exists under s 75(v) of the Australian Constitution which is constitutionally protected. Different rules on areas such as standing and justiciability operate between the two systems, and s 75(v) review cannot be ousted by a privative clause. This has led to parties commencing proceedings under both avenues and suggestions of a “fragmented” system of judicial review in Australia.

Conclusion
The Terms of Reference highlight that there is much scope for the Review to result in change to the judicial review process and substantive public law, whether for better or worse. It is notable that there has been no discussion about whether there will be a consultation on any changes or reform proposed by the Review. Given the importance of many of the issues contained in the Terms of Reference, it is envisaged that many organisations and individuals would want to seek to feed in their views to the Government and other Parliamentarians on these topics.

Whatever reform is ultimately decided upon and introduced, will have long-term and far-reaching consequences for any future governments, whichever party they are from. There will be those who might not want to see many judicial reviews of Governments and local authorities governed by one party who might in due course be rather more pleased to see court challenges to administrations controlled by another party. Given the changing control of administrations over the course of time this is a point everyone will need to bear in mind.