Proposed reforms to judicial review in England and Wales

Judicial review is essentially the means by which the courts audit the legality of decision-making by public bodies in the UK. In July 2020, the UK government commissioned former minister Lord Faulks QC to conduct an independent review of the process in England and Wales. The government's wide terms of reference invited the review to consider restricting the grounds for bringing judicial review claims; restricting the remedies available for successful claims; and using the costs regime to discourage weak claims.

The Faulks review (195-page / 2.1MB PDF), published on 18 March 2021, concluded that judicial review is, in general, working well. However, its publication was accompanied by a government response (56-page / 747KB PDF) launching a consultation on a number of reform proposals. The consultation runs until the end of April, and we can expect to see at least some reforms taken forward later in the year.

The consultation leaves a number of options open. Nonetheless, it gives a clear sense of the direction of the government's reform agenda in the public law space.

The UK government has also launched an independent review of the Human Rights Act (HRA), which is due to report by the summer of 2021. Some of the judicial review reform proposals would also require new restrictions on the application of the HRA, and so we can expect to see more reforms when the government announces its remaining plans later in the year.

Proposals on remedies

The Faulks review noted the value of legislating to give the courts greater flexibility in the remedies they may grant in two respects. The first is a power to suspend a quashing order, so that a public body is first given the opportunity to correct any failure that the court has identified. The second is the discretion to give a quashing order a prospective-only effect, so that things done before the quashing order was granted remain lawful.

Alongside these options, the government is also consulting on presumptive and mandatory variations, which it appears to favour. These would involve restricting the courts' discretion, rather than enhancing it, so that there is a presumption or even a requirement that a quashing order will be suspended or prospective only. For suspension, this would apply to all acts or decisions that are challenged; for prospection, it would apply only to statutory instruments. In both cases, a mandatory approach would include an "exceptional public interest" exception.

Proposals on ouster clauses

Ouster clauses are provisions in legislation that seek to exclude any jurisdiction for the courts to review a particular matter. Generally, although these clauses are usually worded in plain and clear language, the courts have tended to reinterpret them as having limited effect so that they can perform their usual constitutional function of ensuring that the law is interpreted and applied correctly.

The review considered that there are some limited circumstances in which it is legitimate to exclude the courts' jurisdiction in those specific circumstances. It also noted that parliament has the power to limit the jurisdiction of the courts more broadly, but that the "wisdom of taking such a course and the risk in doing so are different matters", given the implications for the rule of law.

However, the government is proposing to legislate for a 'safety valve', designed to ensure that the courts only refuse to give effect to an ouster clause in the most exceptional circumstances. Exactly how such a provision would work for ouster clauses in multiple statutes is not clear.

Appeals from the Upper Tribunal

The government's proposals endorse the review's recommendation to abolish the 'Cart' jurisdiction for judicial reviews, as created by a 2011 Supreme Court judgment. This is a type of appeal for errors of law, which is available when the Upper Tribunal has refused to grant someone permission to appeal against a decision of a First-tier Tribunal in cases on immigration and social security, among other things. The Cart jurisdiction represents a substantial proportion of the judicial review applications that the government defends each year.

Under the government's proposal, the Upper Tribunal will revert to having the final say on whether First-tier Tribunal decisions can be appealed, as it did before 2011.

Proposed procedural changes

The government is also inviting views on a number of other procedural reforms, which are likely to have less impact in practice. They include:

• removing the requirement for a claim to be issued "promptly". This will reflect the position in Northern Ireland and Scotland, where a simple time limit of three months applies;
• allowing parties to agree between themselves extensions to the three-month time limit. This may offer some welcome flexibility on some occasions to allow pre-action discussions to continue, in an attempt to avoid litigation;
• establishing formal multi-track procedural timetables according to the complexity of cases. The challenge in this will be to define abstract criteria that can determine complexity across the full range of judicial reviews.;
• establishing a clear right for a claimant to issue a reply to a defendant's acknowledgement of service. This should add some welcome clarity to the early stages of a judicial review procedure, rather than leaving it to the discretion of each judge.

Judicial review in other UK jurisdictions

The government's response raises the question of whether its proposed reforms should be implemented in all three UK jurisdictions, or only in England and Wales.

Responsibility for judicial review is devolved in Northern Ireland and Scotland, and so the UK government would not normally legislate in parliament on it, without their consent. On the other hand, if it opts to reform only the England and Wales jurisdiction, this could create significant incentives for forum shopping.

Where a public body's decision or act has effects in all parts of the UK, it may sometimes be open to claimants to issue their claim in any one of the UK's three jurisdictions. Where that is the case, they will be more likely to favour the jurisdictions without restrictions on the remedies available to them.