Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’
The Terms of Reference for the Review provide that the Panel should consider the following issues:
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.
In respect of point (4) above, the Terms of Reference further elaborate that the Review should, in particular, consider procedural reforms on the following areas:
(a) 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) Possible amendments to the law of standing;
(d) Time limits for bringing claims;
(e) The principles on which relief is granted in claims for judicial review;
(f) Rights of appeal, including on the issue of permission to bring JR proceedings and;
(g) Costs and interveners.
It is evident from these Terms of Reference, which encompass issues of codification, justiciability, and procedure, that the Review is intended to be wholesale and the potential scope for reform extensive.
The Panel has issued a call for evidence from all those with direct experience of judicial review cases, including practitioners, observers and commentators, with the deadline of 19 October 2020 for responses. The Panel is due to report its findings to the government by the end of the year.
This Review is the part realisation of the 2019 Conservative Party Manifesto pledge to update ‘administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’ and to ‘ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays’. However, the impetus for a review of judicial review predates this manifesto pledge. The Cameron government has previously spoken of what it perceived to be time wasting caused by legal challenges to government policy. In his 2019 BBC Reith Lectures, former Supreme Court Justice Jonathan Sumption spoke of what he regarded as the encroachment of the courts into the political realm, stating that ‘special areas that were once thought to be outside the purview of the Courts, such as foreign policy, the conduct of overseas military operations and the other prerogative powers of the State, have all, one by one, yielded to the power of judges.’ Reacting to similar concerns, Professor Richard Ekins, head of the Policy Exchange Judicial Power Project, has declared that ‘Political action to address the expansion of judicial power, and the consequent unbalancing of the constitution, is long overdue’ and praised the announcement of the Review as ‘an important development in the government’s efforts to address the misuse of judicial power’.
Upon reading this commentary one would be forgiven for thinking that the government is besieged by the courts and hamstrung by judicial intervention at every turn. The official statistics in fact indicate a decline in the number of judicial review challenges brought in recent years, with the number of claims brought in 2019 (3,400) down 6% on the previous year which itself saw a 14% drop on the year before that. Notwithstanding this apparent decline in the number of judicial review claims being brought, two recent high profile defeats of the government in the courts provide the vital context in which the Review is to be understood. The first, Miller (No. 1)  UKSC 5, saw the Supreme Court rule that Parliament was required to pass legislation to effect the UK’s withdrawal from the EU. In the second, Miller (No. 2)  UKSC 41, the Supreme Court ruled that the prorogation of Parliament had been unlawful and void. These rulings appear to have hastened government action in respect of judicial review.
Commenting on the ruling in Miller II, Lord Faulks QC has stated that ‘The decision to prorogue Parliament, however questionable it might have been, was the exercise of a clear prerogative power, the merits of which are the stuff of politics not law.’ In the same comment piece for Conservative Home, Lord Faulks QC went on to state that the government may choose to ‘legislate to settle authoritatively the non-justiciability of the prerogative power to prorogue Parliament and perhaps also impose further limits on the scope of that power’, affirming that ‘Legislation of this kind may be the only way to limit the courts’ incursion into political territory.’ It is precisely this issue of setting the limits of justiciability, among others, which is central to the Review of which Lord Faulks QC is the chair.
Whilst some commentators see the Review as a positive development to rebalance the constitution, others fear that it may lead to reforms which could cripple the capacity for the courts, and by extension citizens, to effectively hold the government to account. Constitutionalists across the political spectrum would agree that, while the exact scope of judicial review may be refined, a robust system of judicial review is essential in any democratic society.
David Lammy MP and Lord Falconer have attacked the Review as an attempt by the government ‘to unpick our unwritten constitution to free Tory ministers from checks, balances and scrutiny just when they are needed most'. Professor Mark Elliot, Chair of the Faculty of Law at the University of Cambridge, has cautioned on the potential scope for reform of judicial review, as embodied in the Review’s Terms of Reference, ‘that would significantly reduce the courts’ practical capacity to uphold the rule of law while attempting radically to recast its constitutional basis by rendering it a creature of statute.’ However, Professor Elliot has argued that any attempt to ouster the courts public law jurisdiction, or limit the scope of judicial review via narrow codification, may ultimately be thwarted by the courts themselves, who, in abiding by constitutional principles, would be compelled to interpret any legislation in such a way as for judicial review to fundamentally remain intact. Should this theory need to be tested, it would result in nothing short of a constitutional crisis.
It is perhaps under limb 4 of the terms of reference, concerning procedural reforms pertaining to costs, standing, appeals and disclosure, that the greatest scope for improvement exists. Those who are anxious about the Review also see this area, however, as being where significant damage could be done by limiting judicial review as a means to check executive power. To them, reforms building upon the Criminal Courts and Justice Act 2015, which made it more difficult for potential claimants to obtain standing and exposed public interest groups to greater risks on costs, could overthrow the balance between the legitimate business of government and the need for accountability and transparency. The thought of a government that would no longer be obliged to abide by the duty of candour in respect of judicial review proceedings and becomes subject instead to a very limited duty of disclosure, with public interest groups shut out of the process, is a sobering one.
Any aspect of the law and the court system may be, and should be, subject to periodic review with a view to possible improvement. That being said, judicial review is an essential, even foundational, part of our constitution in facilitating judicial oversight and scrutiny of the exercise of executive power. As such, any attempt to reform or ‘streamline’ this procedure should be made with the utmost care. In the context of apparent hostility from the government towards the perceived meddling of the courts in the political realm and given the Review’s broad Terms of Reference and short duration, it is to be hoped that the Panel has that firmly in mind.
A version of this blog was published on LexisNexis on 30 September 2020.
 ‘Dominic Cummings and Boris Johnson are trying to put the government above the law’, by David Lammy and Lord Falconer, The Times, 4 September 2020.
Kingsley Napley LLP regularly represents parties in judicial review challenges. Our lawyers also blog regularly about public law matters. Follow our Public Law blog for the latest commentary.
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. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
Charlie Roe is a trainee solicitor currently in the Public Law team. Charlie joined Kingsley Napley in September 2019 as a trainee. Prior to joining Kingsley Napley, Charlie worked at a leading London litigation firm as a paralegal in their Personal Injury and Employment departments.
Charlie read History and Politics at Newcastle University. After working in the charity sector he completed the Graduate Diploma in Law and Legal Practice Course at the University of Law, Moorgate.
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