HSF responds to the Call for Evidence for the Government’s Independent Review of Administrative Law

Herbert Smith Freehills’ public law team has responded to the Government’s Call for Evidence for the Independent Review of Administrative Law (“IRAL”) which was announced on 31 July 2020. In a previous blog post, we discussed the Government’s publication of the IRAL’s Terms of Reference.

The Call for Evidence

The Call for Evidence invited submissions on how well or effectively judicial review currently balances, on the one hand, the legitimate interest in citizens being able to challenge the lawfulness of executive action with, on the other, the role of the executive in carrying on the business of government. One of the overriding concerns was whether procedural reforms to judicial review are necessary to “streamline the process” of judicial review.

The questions put forward in the Call for Evidence focused on a number of issues most of which were alluded to in the Terms of Reference, including whether:

• the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute;
• the legal principle of non-justiciability requires clarification;
• the current rules are too lenient on unsuccessful parties or applied too leniently by the courts;
• the costs of judicial review are proportionate;
• the remedies available are too inflexible;
• settlement is commonplace;
• ADR is suitable to judicial review and should play more of a role; and
• the rules of public interest standing are too lenient.

Our Response

In our response, we put forward the view that the current mechanism for judicial review and wider administrative law functions well and is not in any urgent need of major reform. The key objective behind judicial review is and always has been to ensure that government departments and public bodies are able to properly and effectively discharge their functions, according to the law.

In this vein, we believe that there is no need to place the substantive law of judicial review on a statutory footing nor is there a need to change the current law on justiciability. Neither of these initiatives are likely to promote clarity and accessibility in the law, nor increase public trust and confidence in the judicial review process.

From a procedural standpoint, we noted the 2012 – 2013 Government consultation on proposals for reform of judicial review which led to a number of procedural changes aimed at reducing the number of judicial review claims brought by filtering out unmeritorious claims and reducing delays. 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. We do not believe there is any need for further reform along these lines. Indeed, further reform would risk tipping the balance of the judicial review system such that claimants’ ability to properly seek review of public bodies’ decisions is curtailed unduly, giving rise to serious concerns over access to justice.

On the detail of particular procedural suggestions, we consider that the need for proper compliance with the pre-action protocol should continue to be emphasised by the courts in order to minimise the need to proceed with judicial review. To this end, we are reluctant to see any shortening of the time limits for filing claims which would inevitably impact the ability to fully engage in the pre-action process.

By contrast, we do not think that formal methods of ADR or settlement are generally suitable to many of the situations which our clients face in the context of judicial review. Nor are further reforms to the current test for standing, the arsenal of remedies available to the courts or the costs regime necessary.

Although the Terms of Reference queried whether reform is needed in relation to the duty of candour, the Call for Evidence did not specifically address this issue. We nonetheless considered in our response that limiting or restricting the current rules on the duty of candour would not benefit the parties to judicial review.

Lastly, we noted that one specific area which may benefit from consideration and clarification is the position on expert evidence within judicial review.

Conclusion

The Government’s Call for Evidence provided an opportunity for practitioners, observers, commentators and litigants alike to share their experience of judicial reviews with the IRAL panel but, given the fundamental importance of many of the issues, we emphasised that any concrete proposals should be subject to a fair consultation including with those who would be directly impacted by such reform and those who would be able to offer views based on their experience of practising in the area. The scope of the questions and the importance of the issues touched upon highlight the potential for any reform to have long-term and far-reaching consequences for the accountability of public sector decision making and ultimately the rule of law.