HSF responds to Government's Consultation on Judicial Review Reform

The Queen's Speech on 11 May announced a Judicial Review Bill. This followed a consultation on judicial review reform launched by the Government on 18 March 2021 (the "Consultation") and the publication of the report by the Independent Review for Administrative Law (the "IRAL") on its review into possible reforms to the judicial review process (the "IRAL's Report"). Further information on the IRAL review and Report can be found in our previous blog post. This blog focuses on the Government consultation and our response in view of the forthcoming Judicial Review Bill.

The Consultation

The purpose of the Consultation as set out in the Consultation Document is to "complement the analysis presented in the [IRAL's] Report" and to create an opportunity to consult on some of the proposals it suggested "at an early point in their development". The questions put forward by the Consultation focus in part on the specific recommendations made in the IRAL's Report (such as the discontinuance of Cart Judicial Review and the introduction of suspended quashing orders) which the Government agrees with and intends to take forwards. Additionally the Consultation Document sets out further reforms which the Government says there is merit in considering as a means of addressing some of the issues identified in IRAL's Report.

The key areas in relation to judicial review claims in which the Consultation sought responses included:

• Remedies (including suspended quashing orders and prospective remedies)
• Ouster clauses
• Removal of the promptness requirement
• Consideration of a 'track' system
• Requirement to identify organisations that might assist in litigation
• Introduction of a Reply by the Claimant
• Changes to the obligations surrounding Detailed and Summary Grounds of Resistance

Our Response

In the first section of our response we considered the Consultation's questions on suspended or prospective quashing orders together and indicated our view that such remedies should only be permitted in exceptional circumstances, if at all. We noted that not only could such measures threaten to weaken existing remedies but they could also dampen the frameworks governing public functions by minimising the consequences of improper decision-making and in some instances depriving people of effective relief.

In relation to ouster clauses our response warned against the use of these to exclude judicial review as we believe it would be highly damaging to the accountability of Government and the rule of law.

The Consultation Document posed a series of questions on the possible removal of the promptness requirement for filing judicial review proceedings in conjunction with potential scope for encouraging the Civil Procedure Rules Committee (the "CPRC") to offer time extensions to allow for pre-action resolution. We were generally supportive of removing the promptness requirement in our response, noting our belief that the benefits of the promptness requirement are outweighed by those resulting from the certainty that would be achieved by a fixed 3 month period in which to start proceedings. However, we consider that the 3 month period provides consistent opportunities for meaningful engagement in pre-action correspondence and allows for considered advice from practitioners, and therefore we are not in favour of extending the time limit beyond 3 months.

We were sceptical in our response about the need to introduce a requirement to identify organisations or wider groups that might assist in litigation, both because CPR 54.7(b) already partly goes to this, and also because it would be difficult in practice for many parties to identify possible interveners.

The Consultation Document was somewhat unclear in its request for responses on Detailed and Summary Grounds of Resistance but set out proposed changes to the obligations and procedure. We put forward our opinion that it is misguided to suggest that pre-action correspondence is a sufficient substitute for Summary Grounds of Resistance. Nevertheless we noted the role of pre-action correspondence generally in ensuring that the current 35 day limit before the deadline for filing Detailed Grounds of Resistance is well used and thus concluded that there was no need to extend this limit to 56 days.

Conclusion

Our overarching view is that the current mechanism for judicial review and wider administrative law functions well and does not need to be subject to any major reform. Whilst we are supportive of the Government seeking out scope for improvements in judicial review procedure, we encourage continued consultation with experienced practitioners for any significant proposed changes given the potentially wide-reaching implications for access to justice and the rule of law.

The Queen's Speech to both Houses of Parliament on 11 May 2021 included a reference to a Judicial Review Bill in the context of the Government seeking to 'restore the balance of power between the executive, legislature and the courts'. It remains to be seen what the Government's next steps will be in respect of the proposed content of the Bill and any process of consulting on it.