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Government needs to improve the process by which ministers take legal advice: Institute for Government

Judicial review would cause less frustration in government if ministers and civil servants better understood what legal advice is for and how to use it, a report by the Institute for Government has said.

The IfG report, Judicial review and policy making: The role of legal advice in government, calls on ministers and officials “to accept that judicial review improves policy” and recommends that they review their own policy making processes before trying to limit judicial scrutiny of ministers’ decisions.

In the report the IfG argues that that the prospect of a judicial review often leads to more effective decision making in Whitehall. “The legal requirement that government decisions have a “rational basis” encourages evidence-based policy making, while the requirement for public bodies to follow a fair decision-making process promotes transparency.”

The IfG also says that ministers should test controversial policies in Parliament rather than in court, as judges cannot strike down primary legislation.

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The report recommends that:

  • Officials must involve lawyers early to avoid having to ‘row back’ on policies at the last minute
  • Policy officials should not hide behind legal advice when there are problems with a policy, as this reduces ministers’ confidence in that legal advice
  • The policy profession must be properly trained in how to commission and interrogate legal advice so that policy makers and lawyers ‘speak each other’s language’ 
  • Ministers must communicate more effectively with each other and their officials about their appetite for legal risk.

The IfG, which drew on interviews with civil servants, government lawyers, special advisers and former ministers, said the report also finds that some of the government’s frustrations, including those about delay, are widely shared in Whitehall.

The Ministry of Justice last month launched a consultation on giving the courts the power to suspend quashing orders, removing so-called ‘Cart judgments’, and introducing a series of changes to civil procedure rules, following recommendations by the Independent Review of Administrative Law (IRAL) led by Lord Faulks QC.

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