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Law Society criticises government “over-reach” in judicial review reform

Proposed changes to the ways in which judicial review challenges can be brought “would make life easier for the government at the expense of accountability and access to justice”, the President of the Law Society of England and Wales has warned.

Commenting as Chancery Lane submitted its response to the government’s consultation on reform of judicial review, I. Stephanie Boyce said the move would damage the rule of law.

She added: “The Ministry of Justice has gone beyond what was recommended by the expert panel set up to advise it, with no evidence to back up this over-reach.”

The Law Society cited a survey it carried out of 1,500 people which found that 93% said they thought it was unacceptable for government or public bodies to act unlawfully. Some 95% agreed that judicial review was important “because the government should have to follow the law just like everyone else” (with only 1% disagreeing with this statement).

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In March the Government launched a consultation on reforms to judicial review. The proposals include:

  • giving the courts the power to suspend quashing orders
  • removing so-called ‘Cart judgments’
  • examining how ‘ouster clauses’ can best be given effect to
  • introducing wider options for remedies with discretion being given to judges to order a remedy to be prospective-only in nature
  • considering defining exactly how and when a use of power is automatically ‘null and void’, and
  • introducing a series of changes to civil procedure rules .These include: removing the promptness requirement to make space for pre-trial resolutions; allowing parties to agree to extend the time limit for claims being brought; formalising procedure on replying to an Acknowledgement of Service (as suggested by the Independent Review of Administrative Law led by Lord Faulks QC); looking for improvements to the pre-action protocol to encourage pre-trial solutions; plus others which are detailed in the consultation document.

I. Stephanie Boyce said: “Ouster clauses, which the government proposes to enforce more often, ringfence government decisions beyond the reach of the courts. They should only be used in rare, exceptional circumstances with strong justification. The government seems to want carte blanche – it gives no vision for how or when or why it considers that ouster clauses would and would not be appropriate.

“Collectively, the most controversial proposals ­[ouster clauses, prospective remedies and nullity]  would allow unlawful acts by government or public bodies to be untouched or untouchable. This would harm individuals that challenged them and others who might fall foul of the same unlawful act or decision in the future.

“Proposals would restrict judicial discretion to an unacceptable degree and deny successful litigants an effective remedy. For instance, suspended quashing orders as an option available to the courts could be a good idea – but would curtail judicial discretion if mandated or presumed as government suggests, turning the panel’s recommendation on its head.”
Ms Boyce added: “The effect of the proposals would be a fundamental distortion of the protection judicial review is supposed to provide against state action, undermining the rule of law and restricting access to justice.”

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