A storm in a teacup- but not entirely inconsequential- the Government’s judicial review reform bill
Last week, the Government published their long-awaited proposals for the reform of judicial review. The new Bill follows both the independent Faulks review of administrative law, which recommended only very minor changes; and a government consultation, which went much further. The consultation itself was heavily criticised largely on account of its short length (six weeks, which for major changes such as these is sub-par) – there was even a rumour of a legal challenge that never quite materialised. So, what was the end result of all this?
It is, in fact, a bit of a damp squib. Of the 48 clauses only two deal with reform to judicial review, the remainder being mostly changes to the procedural operations of courts. Those who read our previous articles and the Institute’s response to the consultation will be aware that we were looking out for a few different things: suspended quashing orders, presumptive remedies and ouster clauses. The first would allow judges to suspend the quashing of the decision until the decisionmaker has the opportunity to rectify the illegality, the second would give judicial discretion to rule on a decision for the future but allow the decision under question to stand, and the third would allow ministers to prevent judicial review of decisions.
The only one of these three provisions that explicitly made it into the Bill is for suspended quashing orders (s.1). The new power is not entirely unrestricted. In exercising it, judges must have regard to:
- the nature and circumstances of the relevant defect;
- any detriment to good administration that would result from exercising or failing to exercise the power;
- the interests or expectations of persons who would benefit from the quashing of the impugned act;
- the interests or expectations of persons who have relied on the impugned act;
- so far as appears to the court to be relevant, any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act;
- any other matter that appears to the court to be relevant
We think that it could be very interesting to watch how judges apply these criteria. There are certainly circumstances where judges could refuse to use a suspended quashing order in a consultation case either on the grounds that it would be detrimental to good administration, perhaps by delaying a time sensitive decision (b); or where it was assessed that it would be impossible to fairly rerun an element of a longer-term consultation and engagement process (c and d). These considerations may become even more important as the proposed legislation attempts to introduce a presumption in favour of the use of suspended quashing orders.
One of our concerns about this new form of redress was that it might require judges to become involved in analysis the practice of consultations, rather than merely the law, to determine whether the terms of the suspended quashing order had been met. The legislation does not specify the process for determining whether terms have been met- this will likely emerge from the Civil Procedure Rule Committee in time, but our doubts are not yet fully assuaged on this score. Although judges are not likely to get bogged down into the minutiae of good practice consultation (more likely they will assess compliance on the basis of legality) we could see judgments being appealed on the grounds that the judge got it wrong when assessing how compliant a consultation for the purposes of negating a suspended quashing order was.
Although the other two provisions we were looking out for have not made it directly into the Bill, a formulation that the Government hopes to use as a ‘template’ for the inclusion of ousters in future legislation does. So could we see some decisions ultimately being insulated from the risk of judicial review? There’s some debate within the legal community, but the general feeling is that it’s unlikely that the same formulation could effectively do so as a matter of course.
Overall for consultors the story seems to be little change, unless you happen to end up in court. Assuming the Bill passes largely unaltered, which it almost certainly will do, it will be interesting to see what guidance is given to judges on the use of their new powers. For consultors, the likely outcome is that if you are ordered by a judge to redo a consultation to avoid a quashing order, there will be even more of an impetus to perform at a high standard. Judges are unlikely to be sympathetic if mistakes are repeated, so there will be little wiggle room. The primary result of the new Bill however might be to reinforce the importance of getting it right first time round. What decision-making body could happily absorb the cost of an expensive court case, a new consultation, and then potentially an appeal off the back of that? We would speculate, very few.