Reform of Judicial Review

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On 31st July 2020, the Independent Review of Administrative Law was set up for examining the trends in Judicial Review and to deliberate on any recommendations for reform. The terms of reference for the review were intended to draw the Committee’s attention to certain key areas: codification, unjustifiably, grounds for review and remedies, and procedure.

The Independent Review of Administrative Law made two recommendations for changes in substantive law, as well as various recommendations for procedural changes, as follows: –

  • Legislate for the introduction of suspended quashing orders.
  • Legislate to reverse the effect of the Supreme Court ruling in Cart and reaffirm that Upper Tribunal decisions denying permission to appeal are not subject to the High Court’s supervisory jurisdiction.
  • Procedural changes to be considered and advanced by the Civil Procedure Rules Committee (CCRP).

The government believes that it is useful to explore the following areas to see if practical steps could resolve some of the problems identified in the report: –

  • Legislate to explain an effect of statutory exclusion clauses.
  • Legislate to introduce remedies which have only prospective effect, to be utilized by the courts on a discretionary basis.
  • Legislate that, for challenges to regulatory instruments, there is a presumption or a mandatory requirement so that any recourse is only prospective.
  • Legislate so that suspended annulment orders are deemed or required.
  • Legislate on the principles which lead to the nullity of a decision as of right.
  • Make other procedural reforms which should be considered by the CCRP.

The consultation document is divided broadly into two parts. The first one provides an explanation of the Government’s understanding of the constitution and its aims with regard to Judicial Review, addressing some key points raised in the Review’s call for evidence.

The second part of the consultation analyzes certain proposals by explaining the rationale in more detail and what each proposal is designed to achieve. This is accompanied by recommendations as to how the proposals may be implemented in fairly high-level terms.