LNB news: Ministry of Justice publishes government response to IRAL consultation

The Independent Review of Administrative Law has published a summary of responses by government departments to a call for evidence conducted from 7 September 2020 to 26 October 2020 (see: LNB News 18/03/2021 102).

The review received mixed views from departments regarding the prospect of codifying judicial review. Some responding departments felt that codification would bring more clarity and certainty, particularly concerning the proper understanding of institutional competence and the separation of powers. Other responses pointed out that judicial review is already well understood, and codification could in fact have the reverse effect, with the possibility of a codifying Act inducing satellite litigation. It was highlighted that outcomes from codification would be dependent on the quality of the legislation produced to this end.

Departments agreed that judicial review can improve the quality of decision making and acts as a check and balance on the executive. Departments have generally indicated that in their view, justiciability has been set out by the Supreme Court in Shergill v Khaira [2014] UKSC 33, whereby the court delineated non-justiciable issues into two broad categories: the first being cases where the issue is beyond the constitutional competence assigned to the courts under the separation of powers and the second being cases with no domestic law basis. On the first category, departments raised the issue of obiter comments made by courts which brush up against the limits of their constitutional remit on matters of high politics and areas where ethical judgments are at play. R (Nicklinson) v Ministry of Justice [2014] UKSC 38 concerning assisted suicide and Re an application by the NIHRC for Judicial Review (NI) [2018] UKSC 27 regarding abortion, were given as examples of this contention. On the second category of non-justiciability, the departments pointed to Miller (No 1) v Secretary of State for Exiting the European Union [2017] UKSC 5 as an extension of the courts’ jurisdiction into what in their view is the exclusive purview of the executive’s prerogative power of treat-making. Departments quoted Lord Reed’s dissenting view in the judgment and to practices in other common law jurisdictions regarding the separation of powers in the context of treaty-making.

Regarding grounds for review, departments feel that judicial review could be use by those outside government to drive or influence government policy and public debate, rather that the strict judication of the legality of government decisions. Another concern raised is instances where the courts have allowed the grounds of challenge to change during hearings with R (on the application of TP) v SSWP [2018] EWHC 1474 given as an example of such. Departments feel that the irrationality ground for review is too loosely understood and indicated their view that the approach developed in R v Ministry of Defence ex parte Smith [1996] QB 517 leaves too wide a scope for judicial discretion.

On remedies, departments suggested it would be appropriate for judges to have regard to the broader public interest when considering remedies, for example where quashing a decision based on an imperfect consultation process could result in detrimental effects. Departments raised the possibility of creating a discretion or presumption whereby remedies granted in successful judicial review claims of statutory instruments that did not correctly conform to Parliament’s requirements could be prospective only.

Departments advanced the argument that the unpredictability of judicial review has the potential to negatively impact decision making, by making departments overly cautious and preventing innovation.

Cost proportionality was raised as a significant issue of concern by the government departments. It was highlighted that Immigration and Asylum appeals especially reflect this. The example of Home Office spending on judicial reviews in the 2019—2020 financial year was given to illustrate the departments’ concern, where it spent £75m defending appeals but only recovered £4m from applicants. Departments also pointed out their view that a trend has emerged where courts award full costs to claimants even where a department settles on a pragmatic basis after new evidence or amended grounds have been lodged.

The government response specifically treated immigration and asylum as a topic of contention. One concern that was raised is the prevalence of legal challenges being brought late in the removal process, despite the frequent existence of previous claims by claimants in the first-tier tribunal. The government pointed out that Judicial Reviews are often brought days or hours before deportation and argued that judicial review is in this regard being used as an instrument to frustrate removals.

Departments have argued that the Supreme Court’s decision in Cart [2011] UKSC 28 has led to courts undermining clear legislative construction leading to a reduction in legal certainty. The government here contended that Parliament had made its intention clear with the Tribunals, Courts and Enforcement Act 2007.

The department responses have argued for procedural reform in many areas.

Among these is a view that the distinction between the duty of candour and disclosure should be clarified. Departments contended that requiring the disclosure of civil servants’ advice prevents candour in between officials and ministers and argued that such advice should be protected from disclosure in litigation.

Another issue raised was the principle of standing. Departments argued that claims for judicial review should not be allowed because of potential public interest that the claimant does not have a personal stake in. The government argued that this leave open the possibility for issues that have been decided in Parliament to be re-run in the courts, and the use of the courts as a mechanism to frustrate government policy instead of ruling on the legality of its actions.

The government has also argued that the pre-action protocol process (PAP) should be clarified. In its view, it has become the common understanding that PAP is a stage in the process of Judicial Review rather than an opportunity to settle issues before starting proceedings. Departments raised that campaigning organisations have taken to publishing PAP templates and argued this is an abuse of the process.

The summary of government responses can be found here.