This week the Institute submitted our response to the Government’s judicial review reform consultation. The consultation, which follows the Independent Review of Administrative Law (IRAL), asks nineteen questions about the Government’s proposed reforms, covering a wide range of reforms and is being undertaken as part of a programme of engagement with stakeholders which included two webinars with the Law Society and the Bar Council, the latter of which the Institute sat in on last week.

The consultation is much broader than the three proposals suggested by IRAL and covers reforms that go beyond, or were either not addressed or not supported by the independent review panel. The Institute responded in particular on two matters, the proposed introduction of suspended quashing orders and the introduction of ‘prospective only’ remedies.

On the subject of suspended quashing orders, an amended version of the pre-existing quashing orders where a judge would ‘suspend’ the sanction in order to give a defendant time to rectify the mistakes, we caution that there are many practical problems that might arise in consultation and engagement related court cases if they came into regular use.

We shared our particular concerns about non-expert judges being asked to rule on the intricacies of consultation and engagement methods in order to determine whether an order had been successfully complied with, the risk of judges with little knowledge of the context of consultations being drawn into making decisions best left to those with local knowledge and issues over timing and the difficulties of redoing consultations from scratch.

On prospective-only remedies, our view is that they would be largely inappropriate for the sort of judicial reviews that we regularly see. The consultation identifies that there is a risk of immediate injustice but suggests that this could be rectified in the long term. Although in some areas this would be possible, we do not feel that in most consultation related cases it would be, and injustices would be left unaddressed.

In addition, we argue that many public consultation and engagement related issues would be difficult, or impossible, to appropriately address with a prospective-only remedy. It would not be appropriate for example to attempt to address a major hospital service change under challenge by saying “we will let this decision stand, but don’t do it again”.

We also raised issues about the quality of the consultation itself. It is very short (just 6 weeks), for what are very major proposed changes. From the webinar we attended, we know they do not intend to publish the output of the two webinars, something which we will review when they release the consultation report. We note that there are rumours of a legal challenge to the consultation on the grounds of duration, and we will be very interested to see if anything comes of it.

We also have significant concerns about the quality of the equality impact assessment- it runs to only one side of A4 in the consultation document and doesn’t adequately identify any major equalities impact, despite the fact that judicial review is very tightly bound up with equality issues. When we asked about it on the webinar, we were told that the equality assessment was an ongoing and iterative process, and the assessment in the consultation document was all there was for now. This is decidedly not best practice, and we will be interested to see the final result.

The Institute’s full response to the Judicial Review Reform consultation can be found here