How do you solve a problem like judical review reform?

The Independent Review of Administrative Law (IRAL) announced last autumn has been much criticised for both its remit and its process. Joe Tomlinson and Lewis Graham offer an early assessment of the review, highlighting the flaws in its conception and design. They also acknowledge that the recently announced review of human rights seems not to be repeating the mistakes of IRAL.

In our constitutional system, it is a reality that central government wears two hats in relation to the judicial review system: the actor chiefly responsible for the design and management of the system in practice and the key ‘repeat player’ defendant. It is almost inevitable that, from time to time, tensions will result from this arrangement. Indeed, the UK has a rich history of governments of different political stripes ‘clamping down’ on the judicial review system and ‘striking back’ against specific court judgments. When such moments occur, they understandably provoke a form of constitutional anxiety that is familiar in the UK: a sense that the government is allowed to mark its own homework (or at least to exercise influence over the marker). While cyclical anxiety about the position of judicial review and looming reforms may be better understood as a feature not a bug of our contemporary system, startlingly little attention has been paid to the issue of how reform to the judicial review system ought to be considered. 

The importance of the reform process adopted was on display recently when, after being on the wrong side of a series of high-profile court cases, the government announced that the time was right for a new wide-ranging reconsideration of judicial review. It was clear immediately that this review—styled the Independent Review of Administrative Law (IRAL)—promised to be the most expansive policy examination of judicial review in decades. It is chaired by Lord (Edward) Faulks—a former Conservative Justice minister and now a crossbencher in the House of Lords—and constituted of a small group of academics and practitioners. Six months or so later, there has been much angst about potentially regressive changes being proposed and the defence of the current system has been robust. However, at the same time, many have been pointing to what they perceive to be significant deficiencies in the reform process. Features of the IRAL process which have drawn criticism include:

  • Confusion over the parameters of review: IRAL’s formal Terms of Reference have been described by Mark Elliott as ‘replete [with] syntactical errors’ and commentators have drawn attention to a number of ambiguities relating to the scope of the Panel’s mandate. For example, whilst the Review’s Call for Evidence confirmed that it was ‘considering public law control of all UK wide and England and Wales powers only,’ it seemingly left open a number of questions as to how any proposed changes to the law would affect devolved institutions (see here, here and here). The consultation also contains a paucity of relevant information, in contrast to previous consultations, which included details of the specific proposals and empirical data being considered. 
  • Compressed timing: The Review covers wider-ranging issues of substantive legal principle and procedure. IRAL’s Terms of Reference ask the Panel to proceed on the basis of ‘robust evidence,’ and to consider not only how judicial review is operating today but also how it has developed ‘over the last thirty to forty years.’ It is seemingly impracticable for the Panel to gather, analyse, and assimilate adequate evidence on the operation of judicial review in the time available, let alone generate constructive proposals. A compressed timetable was reported to be a concern for some respondents. Anyone wishing to respond to the Panel’s Call for Evidence had just six (later extended to seven) weeks to do so. 
  • The Review’s (lack of) transparency has also been criticised. It held no public evidence sessions. Further, it has made no clear commitment to either publishing the responses it received, nor its actual report, commenting only that it would defer to the government as to the question of when – and, indeed, if – publication is to occur. 
  • Unbalanced questions and/or an appearance of bias:  A common criticism of IRAL is that many of the questions in the Call for Evidence are—or at least might reasonably appear to be—unbalanced in a number of ways. For instance, the questions included seem to emphasise the perceived negative effects of judicial review rather than its positive ones. The position of Lord Faulks as the Panel’s Chair has also drawn significant criticism, not only due to his former political ties but because his views on many of the key issues considered by IRAL were already in the public domain.

These are just a few examples of a wide range of concerns that have been raised in relation to IRAL’s process.

‘Reviews of judicial review’ have occurred with surprising frequency over the last few decades, and they have taken a diverse array of forms. For example, the Law Commission has performed a number of examinations of administrative law and/or judicial review: it issued relevant reports in 1969, 1976, 1994, and 2010. The character of these reviews was, in many ways, typical of the Law Commission: they took place over an extended period and the associated consultations were open for a long time; they attracted (and often actively sought) a range of expert opinions; and they produced lengthy and informative documents alongside their consultations and recommendations. There have also been a number of government-led consultations leading to changes to judicial review; three such reviews took place between 2012 and 2015, and resulted in piecemeal changes affecting costs, time limits, and appeal rights in the administrative law field (many of which were not received positively). A number of independent reviews of judicial review have also taken place, perhaps the most noteworthy being a Justice-All Souls collaboration in the 1980s—a private reform enterprise which culminated in a report being published in 1988. That particular review—perhaps due to a lack of any formal relationship with a government who were uninterested in reform at the time—did not have a great deal of policy impact and was described as ‘discursive High Table talk.’ 

IRAL’s conclusions are yet to be seen and an overall assessment of the review can only be undertaken in the fullness of time, but it is already clear that the process adopted to consider reform is entirely consistent with a long history of ad hockery in this context. Whilst judicial review must be understood as part our constitutional settlement and such an approach to reform may align somewhat with our overarching traditions of constitutional reform, the modern judicial review system is also a complex, important component of public sector infrastructure.  Whilst there is some evidence that lessons are being learnt from IRAL (the new review of the Human Rights Act decided early to publish submissions, for example), it remains questionable whether the continuation of this approach to reform is adequate. While cyclical anxiety about the position of judicial review may seem like an unavoidable reality of our system, there is plenty of scope for considering frameworks for improving how we conduct future reform in this area and whether the currently dominant model of reactive, government-led reviews is fit for purpose.

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About the authors

Dr Joe Tomlinson is Senior Lecturer in Public Law at the University of York and Research Director of the Public Law Project.

Lewis Graham is Research Fellow in Constitutional Reform at the Public Law Project and a Ph.D Candidate at the University of Cambridge.

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