Government launches review of judicial review process with report expected later this year

The Ministry of Justice has set out the terms of reference for the review of the judicial review process which will consider “whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”.

“The move delivers on a manifesto commitment to ensure the judicial review process is not open to abuse and delay,” the MoJ said.

The review will consider in particular:

1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.
2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.

The terms of reference – including background to these questions – can be found here.

“The review will examine a range of data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is justified,” the MoJ added.

The review will consider public law control of all UK wide and England & Wales powers that are currently subject to it "whether they be statutory, non-statutory, or prerogative powers".

The proposed panel members are:

• Lord Faulks QC – Panel Chair: a barrister at 1 Chancery Lane and a cross bench peer. He was Minister of State for Civil Justice between 2013 – 2016.
• Professor Carol Harlow QC: Emeritus Professor of Law at LSE. She was appointed Queen’s Counsel (honoris causa) in 1996.
• Vikram Sachdeva QC: a barrister at 39 Essex Chambers.
• Professor Alan Page: Professor of Public Law at the University of Dundee.
• Celina Colquhoun: a barrister at 39 Essex Chambers specialising in planning and environmental law.
• Nick McBride: a Fellow of Pembroke College, Cambridge,

The panel will report back later this year.

The Lord Chancellor, Robert Buckland, said: “Judicial review will always be an essential part of our democratic constitution – protecting citizens from an overbearing state.

“This review will ensure this precious check on government power is maintained, while making sure the process is not abused or used to conduct politics by another means.”

Lord Faulks QC said: “I am delighted to have been asked to chair the Independent Review of Administrative Law. The panel will bring a wide range of experience and opinion to this important subject.

“Together we will examine judicial review and the need to strike a balance between the right of citizens to challenge government through the courts and the elected government’s right to govern.”

Any recommendations for reform put forward by the panel will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office, Michael Gove.