Acting to stop harm: the FCA and Appointed Representatives
Studies may have found Tuesday to be the most depressing day of the week, but this Tuesday, many legal practitioners received a small mercy for which to be grateful. The news was in that the previous evening’s Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill had taken place, and the government had experienced heavy defeats in several important votes on proposals to restrict access to judicial review.
Judicial review provides the tool that citizens can use to hold the State to account. Individuals can challenge government or public body decisions in court by bringing proceedings for judicial review. It is a check and balance on the power of government, and a fundamental part of our legal system. Indeed, in the words of Lord Dyson (now Master of the Rolls) in R (Cart) v Upper Tribunal  UKSC 2: “There is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review.”
Three vital amendments to the Bill were introduced in the House of Lords last night. The first rejects a proposed presumption that those who apply to intervene in a judicial review case will have to pay their own costs. Secondly, the government lost by 66 votes with respect to the Bill’s proposal to lower the threshold of the materiality test. The proposal was that the court could reject judicial review applications which were “highly likely” not to lead to a different outcome, rather than the current test applied that judicial review would “inevitably” make no difference. Finally, the third amendment removed a provision that would necessitate applicants giving detailed information about how their application was being financed.
It is notable that some of the Bill’s proposals have the consequence that judicial review would become the preserve of only the very wealthy in our society. Surely we all have an inherent interest in ensuring that the government acts lawfully? In addition, the materiality test is an important check and balance on the Rule of Law. If a public body is judicially reviewed in respect of something which can be shown to be “highly likely” to make no difference to a given situation, this in itself does not make the public body’s actions any more lawful or unlawful, as the case may be. We should all have a stake in ensuring our elected government behaves in a manner which is lawful.
One reason the government provides for the necessity of reform of the judicial review process is the apparent large rise in judicial reviews. However, this is something of a misinterpretation; although there has undoubtedly been significant growth in the number of judicial review cases brought, the increase has been in cases relating to immigration and asylum. In non-immigration and asylum cases, the number of cases has in fact decreased since 2006.
The main thrust of the government’s support in the Lords last night stemmed from peers such as Lord Tebbit, who argued that parliament should be upholding laws rather than the “unelected dictatorship” of judges. However, the logic of this argument effectively leaves no redress for those in situations where the government has made an unlawful decision. Public bodies and government are not infallible and to name just three notable examples of successful judicial reviews in recent months:
1) The successful challenge to proposed reforms which would have introduced a residence test for legal aid, on the grounds that it was discriminatory and unlawful;
2) The High Court’s ruling that the Lord Chancellor had not carried out a proper review of the likely effect of removing the exemption which applies to the recovery of success fees and after the event (“ATE”) insurance claims for mesothelioma claimants;
3) The recent decision of High Court that part of the government's legal aid reform in England and Wales is unlawful, and that the Ministry of Justice’s failure to let lawyers comment on two reports and was so "unfair as to result in illegality".
In terms of next steps, the Third (and final) Reading of the Bill in the House of Lords is scheduled for mid – November. It then moves to the Commons, where MPs will debate and consider the amendments made in the Lords. Therefore, nothing is yet certain in terms of what the “finished product” may say.
It seems that the debate in the Lords last night reached sensible conclusions, and it can only be hoped that similar decisions follow in the Commons. Many lawyers will be willing MPs in the Commons to have Lord Deben’s words from last night’s debate in their minds when considering the Bill. After noting that judicial review represented “defence of freedom", Lord Deben gave his honest assessment that the existence of the power of judicial review had made him a better minister “because it made me think of the law, not my opinion".
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘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 Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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