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Striking a balance or tipping the scales? The Independent Review of Administrative Law and the possible reform of Judicial Review
Reading the conclusions of the IRAL (pp. 129-131), it is evident that the independent panel recognised the massive scale of the task it had been set in the short time available, especially in light of the pandemic and the high number of sophisticated responses. The panel therefore wisely focused on selected concerns and noted that “any changes should only be made after the most careful consideration, given the important role that judicial review plays in our constitutional arrangements and, in particular, in maintaining the rule of law”.
In a nod to the government’s reform agenda, the panel accepted that the courts do sometimes, and perhaps increasingly, go beyond a ‘supervisory’ approach, but it tempered this critique. It noted that this may reflect Parliament’s tendency to draft imprecise laws that force judges to decide controversial questions through interpretation. The panel also cautioned that the checks and balances in the system are currently working well, and that seeking to curtail the powers of the judiciary might have the effect of harming the high international reputation of UK judges. While it identified a number of practical and procedural changes, on many of the more radical matters it was asked to cover the panel could not recommend reform.
Now that the IRAL has been published, the government has started to consult on specific changes which it says “will directly address the recommendations” of the IRAL panel. Some of the proposed reforms will require careful consideration (notably those relating to ouster clauses and prospective or suspended remedies) whereas others are likely, at first sight, to be comparatively uncontroversial (such as the clarification of time limits and providing for a reply to the Acknowledgment of Service). Some of the proposals now being consulted on were not considered by the IRAL at all. The deadline for responses is 29 April 2021, which is a very short time. It is to be hoped that the government will honour the view of the IRAL panel, and recognise that changes in this important area of law require “the most careful consideration”.
Further details about the IRAL and the consultation can be found on the government website (here), including copies of the IRAL report and consultation document.
A version of this blog was published on LexisNexis on 19 March 2021.
Kingsley Napley LLP regularly represents parties in judicial review challenges and other public law matters. Follow our Public Law blog for the latest commentary. We act for organisations and individuals in the space where law and politics meet, from inquiries and investigations with a political dimension through to challenging decisions made by public bodies and more details can be found on our Political Affairs page.
Nick Wrightson is a Senior Associate in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
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