The following Statement was made in the House of Commons on Thursday 18 March.
“With permission, I would like to make a Statement on the Government’s response to the independent review of administrative law.
In our democracy, judicial review plays a vital role in upholding the rule of law: it acts as one of the checks on the power of the Executive. Importantly, as the noble and learned Baroness, Lady Hale, put it in her submission to the review panel:
‘In the vast majority of cases, Judicial Review is the servant of Parliament’.
Through judicial review, the courts ensure that the powers that Parliament grants are not used in ways that exceed the limits imposed on those powers, and are not used in ways that 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 lawfully. The jurisdiction of the courts is therefore meant to be supervisory only.
Last year, I launched an independent review of administrative law to examine trends in judicial review. I am sure the House will want to join me in thanking the panel, chaired by the noble Lord, Lord Faulks, for its diligence in producing such an excellent report, copies of which I have placed in the Libraries of both Houses. It was quite an undertaking, conducted in this time of Covid. The panel ran a call for evidence, which elicited many valuable contributions from a diverse range of interested parties.
The report’s finding—that there is a growing willingness to accept an expansion of the remit of judicial review, whether in terms of more decisions being considered justiciable, or the way in which the courts review an exercise of power and the remedies given—is worrying. I am sure that the House will agree with me that the recommendations in the panel’s report about how we can restore a more sensible balance of responsibilities between Parliament and the courts are clear, practical and achievable.
The Government are consulting on a range of policy proposals, but there are two recommendations in particular from the report that we are keen to take forward as soon as possible. First, we will follow the review’s recommendation to legislate to remove a type of judicial review known as the Cart judicial review, after the Supreme Court case of that name.
The issue is that, even though decisions of the Upper Tribunal are supposed to be of the same status as those of the High Court, the Cart judicial review route allows someone to challenge certain Upper Tribunal decisions by applying to the High Court for permission for judicial review of the Upper Tribunal’s decision, and potentially onward to the Court of Appeal should the High Court refuse permission, as in fact it does in the vast majority of cases.
In such an appeal, the Court of Appeal is essentially asked whether it thinks that the proposed appeal against the High Court’s refusal to grant permission to judicially review the Upper Tribunal’s refusal to grant permission to appeal the First-tier Tribunal’s decision should be allowed. That—eloquently, perhaps—outlines the essence of the problem: we say that there are simply too many layers and too many otiose proceedings that do not serve the interests of justice.
The review analysis found that out of 5,502 Cart judicial reviews brought between 2012 and 2019, only 0.22% were successful. That is an astonishingly low rate. Given that each and every one of those cases required detailed consideration by judges, I agree with the panel that a huge amount of judicial resource is being used to rectify a vanishingly small number of errors. The proposed reform will place the decisions of the Upper Tribunal and the High Court on an equal footing, and we will bolster the current array of remedies available to the courts so that issues can be resolved in a collaborative way.
I agree with the panel that the courts should have the ability to suspend quashing orders and to mandate a time by which any administrative oversight should be corrected. I will accept that recommendation and would like to consider how it should be implemented and whether suspended quashing orders should be presumed to apply or mandatory.
The steps recommended by the panel are an excellent starting point for rebalancing our system, but the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process. As the House will see, the report contains a detailed analysis of judicial review and how it operates in practice, and we are at the right juncture to take a closer look. Today, I want to open up a public debate on the role of judicial review within our wider constitutional arrangements by launching a consultation on further proposals to examine the use of ouster clauses, the remedies available in judicial review proceedings, and further procedural reform.
It is self-evidently open to Parliament to delineate the role of the courts in controlling any particular power because, of course, Parliament is sovereign. Parliament can do this by passing an ouster clause—a considered choice that certain subjects are not appropriate for judicial control. For example, in the Parliamentary Constituencies Act 1986, Parliament provided that reports of the Boundary Commission are not subject to judicial review. Unfortunately, the current practice on ouster clauses—not giving them effect—arguably goes against the intention of Parliament, so we are considering putting in place a set of rules that clearly delineate which issues are a matter for the courts to adjudicate through judicial review and which are not. For that reason, the Government want to consider the workings of ouster clauses and find a way for them to be used more effectively and in the way intended by Parliament.
The consultation proposes the introduction of prospective-only remedies, which would limit the retrospective effect of any quashed decision or action. That would complement the use of suspended quashing orders and could result in more considered resolutions. Instead of the sledge-hammer of remedies that demand immediate resolution and lead to rushed policy, I want to create a system that encourages solutions to be found through political will rather than legal dispute, so that policy-making as an exercise can be much more collaborative and better informed.
The consultation will therefore consider three things: first, whether to give judges discretion in providing for prospective-only remedies; secondly, whether prospective-only remedies should be presumed to apply in all challenges against statutory instruments; and finally, whether all remedies granted when challenging statutory instruments must be prospective-only unless it is a matter of exceptional public interest for them not to be.
As part of this work, to make such remedies effective I am bringing forward proposals for reforms to the doctrine on nullity. The consultation will also consider whether to recommend to the civil procedure rule committee that it considers a range of procedural reforms to improve the efficiency of the administration of judicial review claims.
As Lord Chancellor, my role is to uphold the rule of law and defend the judiciary. The Government want to seize the opportunity to do just that by restoring a proper balance between the institutions that have been so integral to our success as a nation in protecting the rights of individuals and our vital national security, and effective government itself. We are determined to ensure that judicial review—this vital check on executive power—is maintained for future generations and that the process is finely tuned within our constitutional arrangements, to enable it to be a true conduit for fairness in our society. I commend this Statement to the House.”