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21 April 2021
Disputes Quick Read – 61 of 98 Insights
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
- Quick read
The Independent Review of Administrative Law (IRAL) published on 18 March 2021 was partly a political response from the UK government to two Brexit-related Supreme Court decisions: R (Miller) v Secretary of State for Exiting the European Union and R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland.
These much-publicised decisions considered the UK triggering Article 50 without an Act of Parliament, and the prorogation of Parliament, respectively – both highly charged issues. Fittingly, the commissioning of the IRAL was itself controversial, with critics accusing the government of being "bent on constitutional destruction".
The IRAL panel was up front about its review being a political hot potato, and was at pains to say it had been afforded neither the resources nor time to complete a comprehensive review of judicial review. Its recommendations are accordingly restrained.
What did the IRAL recommend?
Only two legislative recommendations were made:
- Parliament should legislate to amend section 31 of the Senior Courts Act 1981 – which provides the remedies for a judicial review – to reverse the Supreme Court's decision in Ahmed v HM Treasury (No.2) and make it lawful to order a suspended quashing order (that a quashing order will take effect if certain conditions are not met). The Panel felt this would give judges the ability to make orders which provide time and flexibility to public bodies to produce workable solutions, as opposed to the current position, whereby a quashing order or a declaration of nullity must be made immediately.
- Parliament should reverse the Supreme Court's decision in R (Cart) v Upper Tribunal; Eba v Advocate General for Scotland, which concerned the scope for judicial review by the High Court (or Court of Session in Scotland) of unappealable decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007. The IRAL recommended that decisions by the Upper Tribunal to refuse permission to appeal decisions of the First Tribunal should not be capable of judicial review, particularly having regard to the fact that only 12 of 5502 such applications were successful.
Those amendments aside, the status quo was broadly advocated for. The panel made no recommendations on codification, non-justiciability or the grounds of review.
The Ministry of Justice's consultation
That does not mean change may not be on the horizon. The Ministry of Justice has launched its consultation which closes on 29 April 2021, implementing its Manifesto commitment to ensure judicial review is "not abused to conduct politics or to create needless delays". That consultation builds on the IRAL's recommendations, including some proposed procedural changes (to be taken forward by the Civil Procedure Rule Committee):
- removing the requirement for a claim to be issued "promptly" (but retaining the three-month time limit)
- providing further guidance on intervenors, and
- providing for an extra step – a Reply to be filed within seven days of receipt of the Acknowledgement of Service.
It also considers further reforms, including:
- legislating to introduce remedies which are of prospective effect only (and potentially making such remedies mandatory for challenges of Statutory Instruments), and
- further procedural reforms (including extending the time limit for bringing a judicial review claim to encourage pre-action resolution and introducing a "track" system for judicial review claims).
We look forward to seeing whether these suggestions are taken forward and will report any significant changes to the process as they arise.
Find out more
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.
In this series
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14 November 2024
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UK introduces mandatory reimbursement rules to combat APP fraud
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New SFO Director announces bold plans to tackle fraud
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First of its kind judicial guidance on the use of AI in the courts
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Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
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17 October 2023
Pre-Action Protocols – what is different?
12 September 2023
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Failure to prevent fraud – a new offence?
14 August 2023
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Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
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The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
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Disputes Quick Read – developments in the fixed costs regime
3 May 2023
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Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
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Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
by Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
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Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
by Multiple authors
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
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Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
by Jess Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
by Tim Strong
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
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Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
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Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
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Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
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Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
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