Administrative law reforms ‘an attempted power grab’

Head of the human rights team, Jamie Beagent said:

“The Justice Secretary’s announcement today marks the most extensive attempted power-grab by government in peace-time constitutional history.

“Centuries of constitutional development, in the birth place of modern liberal democracy, are at risk as the government seeks to hobble the rule of law and the fundamental separation of powers. By seeking to oust and control the supervision of the courts the government seeks to put itself above the law.

“The government appointed its own panel to conduct a review but in coming out with these proposals it has essentially ignored its own experts’ measured recommendations.

“Leigh Day will be fighting the central proposals in this consultation on behalf of its clients and the present and future citizens of the UK. We shall publish our more detailed response in the coming days.”

The proposals for reforms announced in Parliament this morning, Thursday, 18 March 2021, include:

• Two reforms to substantive law which the Government intends to take forward in legislation: reversing the effects of the Supreme Court decision in Cart and to re-affirm that decisions of the Upper Tribunal to refuse permission to appeal are not subject to supervisory jurisdiction of the High Court ; and introducing suspended quashing order as a new remedy
• Procedural reforms to be taken forward by the Government and Civil Procedure Rule Committee (CPRC): removing the requirement for a claim to be issued “promptly”, but retaining the three-month time limit; providing further guidance on intervenors; providing for an extra step in the procedure of a Reply, to be filed; and within seven days of receipt of the Acknowledgement of Service
• Consideration of possible further reforms as follows: legislating to clarify the effect of statutory ouster clauses; legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis; legislating that, for challenges of Statutory Instruments, there is a presumption, or a mandatory requirement for any remedy to be prospective only legislating for suspended quashing orders to be presumed or required; legislating on the principles which lead to a decision being a nullity by operation of law; making further procedural reforms (which would need to be considered by the CPRC).

Robert Buckland said reforms to judicial review will “restore a more sensible balance of responsibilities between Parliament and the courts”.

Making a statement on the Independent Review of Administrative Law, the Justice Secretary told the Commons:

“Through judicial review, the courts ensure the powers which Parliament grants are not used in ways which exceed the limits imposed on those powers and are not used in ways which are contrary to Parliament’s intentions.

“The purpose of judicial review is not to question the merits of any decisions made under those powers, rather it is to ensure that the decision was made in a lawful way. And the jurisdiction of the courts is therefore meant to be supervisory only.”

The Government has opened a consultation on each proposal, accompanied by specific consultation questions to which responses can be submitted.

He told the Commons: “The Government would like to go further to protect the judiciary from unwanted political entanglements and to restore trust in the judicial review process.”

He has launched a consultation on further proposals to examine the use of ouster clauses, remedies available in judicial review proceedings and in further procedural reform.