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Judicial Review and Courts Bill – bigger reforms on the horizon?

By Monidipa Fouzder >>

(26 July 2021)

The government appears to have exercised a degree of restraint with its Judicial Review and Courts Bill. But the lord chancellor has hinted that further reforms are on the horizon.

Robert Buckland chose to deliver a keynote address on judicial review reform at the headquarters of Policy Exchange – a right-of-centre thinktank that has published some of the loudest critics of so-called judicial activism. Legal observers understandably took this as a sign of what to expect from the Judicial Review and Courts Bill, published seconds before the webinar began.

But whether the bill’s proposals go as far as Policy Exchange’s Judicial Power Project would like is open to debate. The thinktank ‘will be deeply disappointed by what you have wisely brought forward’, Lord Pannick QC told Buckland mischievously during the Q&A session.

The bill addresses two areas of concern for the government.

The first is the flexibility of the remedies that the court is able to give. The legislation will allow courts to suspend the effects of a quashing order, meaning judges can delay the point at which a government action is overturned. The Ministry of Justice says this will improve public policy by, for example, allowing a department to consult on the best way to replace an administrative regime, rather than rushing to do it immediately.

The court will also be able to limit the retrospective effect of quashing orders, meaning judges can determine the government’s action unlawful without invalidating any prior action. The government says this will enhance good administration, with public resources spent making a regulatory regime work rather than focusing on retrospective compliance.

The second area of concern is the efficiency and structure of the courts system, which the government says is undermined by a particular route of judicial review. The bill will reverse the effect of the Supreme Court’s 2011 judgment in Cart, which would prevent Upper Tribunal appeals being subject to judicial review.

Public law specialists disputed the data used to justify reversing Cart. However, the MoJ concluded that the success rate of Cart JRs was still too low, adding that it cost the taxpayer over £300,000 per year which could be better spent on dealing with outstanding cases in the High Court.

In the consultation, Buckland wanted to look at how ‘ouster clauses’ – which define the bounds of the court’s jurisdiction – could be enforced. This has been dropped, after he was persuaded by the majority view of respondents that this would be too complicated and risked reducing clarity and certainty around the law.

However, the MoJ’s announcement on the bill said the department expects the legal text that removes the Cart judgment could serve as a framework that can be replicated in other legislation.

Pressed on this by former Treasury solicitor Sir Jonathan Jones, Buckland said he wanted to look not just at ouster clauses in the context of Cart but also ‘what it may point the way to’.

He acknowledged that a ‘one-size-fits-all’ ouster clause would not work: ‘This is a template or prototype. But it would be wrong of me to sketch out what scenarios a subsequent ouster clause might seek to fit. What I can promise you is that each time this is considered it will be very carefully calibrated based upon a specific context.’

Buckland agrees with the Independent Review of Administrative Law that the answer to any judicial overreach is judicial restraint, which does not require legislation.

Asked what steps he would take if this judicial restraint proves to be short-lived, he replied that he trusts the judiciary. But as the ‘constitutional guardian’, it was right for the government to ‘check the engine and tyres, and make sure the vehicle is roadworthy’.

He added: ‘In this particular role we have an unusual bridge between the worlds of law and politics. My job is to make it easier if at both ends there is as much stability as possible. Both ends have got a joint responsibility to get it right.’

Further reforms are on the horizon. The Independent Human Rights Act Review will report later this year and provide ‘potential options which the government could legislate upon’, Buckland said.

Buckland wants to carefully review the Blair administration’s Constitutional Reform Act 2005. He told the webinar the focus would be on the role of lord chancellor, the lord chancellor’s relationship with the judiciary, and questions relating to the Supreme Court.

And he later told Lord Pannick that ‘there will be other proposals coming down the line that you may find more controversial’.

Nevertheless, incrementalism appears to be the watchword for the government’s constitutional reform agenda. So far.

(Courtesy: The Law Society Gazette)