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. 
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Video: Scrutinising Administrative Justice

Richard Thomas

Date and Time: Thursday 26 April, 1.00pm
Venue: Council Room, The Constitution Unit

Chair of the Administrative Justice & Tribunals Council (AJTC) Richard Thomas CBE spoke in detail about the functions of administrative justice and the implications of its (possible) demise.

1. Administrative Law & Wider Justice

Mr Thomas defined administrative justice as how well the State makes decisions about people – affecting their benefits, taxes, immigration status, education, housing and (in the case of mental health patients) their liberty.

Over one million appeals and complaints against the decisions of public bodies are made each year to various Ombudsmen, tribunals and other institutions. These appeals have a success rate of approximately 35-50%, suggesting widespread failure to make correct decisions in the first instance. An aim of the AJTC is to encourage tribunals etc. to ‘get it right first time’.

The AJTC was established by the Tribunals & Courts Act 2007 (s44) and is an advisory non-departmental government body with statutory responsibility observe tribunals etc. in action and to scrutinise (from the user’s viewpoint) administrative justice on behalf of the Lord Chancellor. However, it is due to be abolished later this year, despite the recent conclusion of the Public Administration Select Committee that its role of providing independent overview is one of “vital national importance”.

2. Why is independent scrutiny and challenge important?

Mr Thomas argued that administrative justice needs external overview as individuals often use the system to challenge monopolistic state power. Therefore, it is fundamentally important to have an independent view of how users could seek redress.

Furthermore, in many areas that the administrative justice system serves, there is no market pressure to improve upon dispute resolution/complaints services. This means that scrutiny bodies like the AJTC are the only way to ensure best practice.

3. Why – unlike most other countries – is administrative justice the Cinderella of the justice system?

Agreeing that administrative justice is not held in particularly high regard by politicians and the executive, Mr Thomas offered several explanations. First, legal aid has always been limited for many tribunals and this will only get worse with the on-going legal aid cuts. Secondly, many tribunals are ‘do it yourself’ forums where parties often represent themselves and this can lower the prestige of the system. Thirdly, many administrative law cases involve issues that cut across several government departments and subject areas – and thus ‘fall into the cracks’.

4. What are the implications of cuts to legal and advice services?

It will be very difficult to pre-judge the effects of the legal aid cuts and it would be best to ‘wait & see’, Mr Thomas argued. He suggested that the administrative justice system could operate less efficiently as many individuals would be appearing before tribunals without any advice whatsoever.

5. Could the Ministry of Justice perform the functions of the AJTC?

The Ministry of Justice (MoJ) believes that it can take over scrutiny of the administrative justice system. Whilst not doubting that the MoJ has the competence to perform such a role, Mr Thomas identified the obvious problem: the MoJ is very much a part of the executive and so cannot be an independent arbiter.

Note prepared by Nick Perkins, intern on the Unit’s Judicial Independence project.

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