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.