Government launches panel to consider the judicial review process

On the afternoon of Friday 31 July the Government announced that it had appointed a panel of experts (the “Panel”) to examine if there is a need to reform the judicial review process (the “Review”).

Background

The Conservative Party in its 2019 manifesto (at page 48) committed to establishing a Constitution, Democracy and Rights Commission (the “Commission”). Its stated purview was to examine the broader aspects of the British constitution, including the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice. The manifesto committed to ensuring that judicial review would be available to protect the rights of individuals against the state, while ensuring that judicial reviews could not be “abused to conduct politics by another means or to create needless delays”.

There has been conjecture that the inclusion of the Commission in the 2019 manifesto came as a result of the Government’s defeat in R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41. In that case the Supreme Court unanimously found that the Prime Minister's advice to Her Majesty the Queen to prorogue Parliament for an extended period was unlawful and void, and quashed the consequent Order in Council effecting the prorogation. (See further details in respect of this case.)

The Government states that the Review delivers on a manifesto commitment to ensure the judicial review process is not open to abuse and delay.

Purpose of the Review 

The Review will consider whether the “right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”. Although the Government has not released detailed terms of reference, it has indicated that the Panel will consider:

• whether the terms of judicial review should be written into law;
• whether certain executive decisions should be decided on by judges;
• which grounds and remedies should be available in claims brought against the government; and
• any further procedural reforms to judicial review, such as timings and the appeal process.

Process of the Review

The Government has stated that the Review’s work forms part of the Lord Chancellor’s duty to defend the courts and judiciary that lie at the heart of British justice and the rule of law. It will do so by examining a range of data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is justified. The review will be chaired by Lord Edward Faulks QC together with five other panellists.

Any recommendations for reform put forward by the Panel will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office, the Right Honourable Michael Gove MP. The Panel is due to report back later this year.