The Government’s consultation on its proposals for judicial review reform is now closed and the overarching theme of the published responses to the consultation is damning. The Law Society has said that the reforms the Government is proposing risk significantly damaging “the effectiveness of judicial review as a tool for ensuring the accountability of government and public authorities”. Summer 2021 is when the Government is expected to set out the reforms it intends to implement.

The consultation comes after the conclusion of a five-month review of the law on judicial review undertaken by a panel of experts chaired by Lord Faulks QC (the Independent Review of Administrative Law or ‘IRAL’), in delivering a manifesto commitment assumed to have stemmed from the Government’s dissatisfaction with the decision of the Supreme Court in Miller 2.

The Faulks report made modest recommendations for change in both law and procedure, some of which the Government intends to implement in legislation “at the earliest opportunity”. However, the Government has consulted on proposed reforms that go beyond those recommended.

These additional proposals, which the consultation document confirms are in the early stages of development, is where the Government finds itself the subject of heavy criticism, which is unsurprising given the concluding remarks of the Faulks report, that the Government should “think long and hard” before seeking to curtail the courts’ inherent powers to review the legality of government action.

The Government is considering the following ideas for law reform, described by the Law Society as having “no basis” in the IRAL panel’s recommendations:

Introducing prospective-only remedies

Giving the courts discretion to order a remedy that is prospective-only in nature would mean that an unlawful decision would be quashed only insofar as it concerns future use, whereas its past use would be deemed valid. The Law Society has said that this would have “a chilling effect on the system of judicial review”, largely because a successful claimant not receiving an immediate remedy for an unlawful act that has adversely affected them would act as a disincentive to bringing a judicial review claim. The Government further proposes creating a presumption or mandating that, in certain cases, remedies granted will be prospective-only, notwithstanding that remedies in judicial review are discretionary in nature.

Ouster clauses limiting or excluding judicial review

Ouster clauses are clauses in primary legislation that prevent the courts from being able to judicially review a decision or use of a specific power. The Government says it wants to look at making ouster clauses more effective where there is ‘sufficient justification’ for ousting the court’s jurisdiction. In relation to its hopes to legislate on their interpretation, former UK Supreme Court Justice Lord Carnwath considers the Government “has failed to identify a problem requiring legislative intervention” and understands the perceived problem to be based on a “wholly unsupported premise” that many such clauses are not being given effect to by the courts.

Legislating as to when the courts can or should declare that an act was null and void

A finding of nullity is where the court provides a remedy by declaring an act (i.e. a decision or use of power) null and void. The Government has proposed to legislate with the aim of reining in “the court’s propensity to declare the exercise of power null and void”, whereby the use of nullity would be constrained in various ways. The Law Society anticipates that the reforms would allow unlawful acts to stand in all but the narrowest circumstances and lead to a proliferation of litigation in the form of challenges to the legislation.

We can easily see why the above proposals have been met with backlash; they “would allow unlawful acts by government or public bodies to be untouched or untouchable”, says president of the Law Society, I. Stephanie Boyce. In a high level of detail, the Government has set out a series of reforms that depart significantly from the analysis of the Faulks report. The proposals (e.g. robustly preventing review through the courts), and the potential implications of them (e.g. added disincentive for the bringing of a claim), strike a jarring note with the Lord Chancellor’s claims to want to restore the place of justice and preserve fairness through reform to the law of judicial review.

Judicial review is the legal procedure by which a decision of a public body can be challenged by those who are affected by the decision. The purpose of judicial review is to ensure that public bodies, when exercising public law powers, act lawfully, fairly, reasonably and without discrimination or breaching human rights.

The system of judicial review is a mechanism by which to ensure the accountability of the Government and other public bodies. The decision being challenged is ‘reviewed’ by the courts, and the courts decide whether it is arguable that the decision is legally flawed according to the laws made by parliament.