Westminster Legal Policy Forum

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Reforming the judicial review process in England and Wales - the grounds for judicial review, procedure, and the likely impact of reform

Morning, Thursday, 22nd July 2021


***Full-scale policy conference taking place online***

This conference will look at reform to the judicial review process in England and Wales following the recent publication of the Independent Review of Administrative Law (IRAL), commissioned by the Government.


The changes proposed by the IRAL affect a range of areas of law - including immigration and asylum, health and social care and local government.


Delegates will examine the likely impact of the Review’s recommendations, the Government response - and next steps following Government’s recently launched consultation, which will look at:

  • how best to implement the Review’s core recommendations; and
  • whether to take more radical steps which the Review did not advocate or endorse.

We are pleased to be able to include a keynote contribution on the key findings of the review from its Chair, Lord Faulks QC.


Key areas for discussion include:

  • the current state of play for judicial review (JR) in England and Wales
  • key findings of the Independent Review of Administrative Law
  • the impact of proposed reforms to Cart JR on immigration and asylum cases and remedies in judicial review challenges
  • next steps for reforming procedure and justifiability

A scan of the background:

  • Independent Review of Administrative Law - recent publication of the Review:
    • with recommendations including:
      • procedural measures, such as removing the requirement that a claim be issued ‘promptly’, while retaining the three month limit
      • that Parliament dictate justiciability by reacting to individual decisions, rather than through blanket legislation
      • that Cart JR, which is a specific form of appeal brought in immigration cases, be discontinued
      • that the court be given the option of making a suspended quashing order
    • the Government’s response and now closed consultation on the recommendations 
  • MoJ could face judicial review over JR reform consultation - the Law Society Gazette reporting requests that the timeline for the consultation be extended, backed with the threat of judicial review proceedings against the Ministry of Justice 
  • the outcome of the Judicial Review Reform consultation  - following the Lord Chancellor’s expressed desire to explore options that go further than the Review’s proposals
  • issues with recommended reforms to Cart JR and the Ministry of Justice’s response:
    • Putting the Cart before the horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews - the UK Constitutional Law Association expressing concern about the statistical basis for recommended reforms to Cart JR
    • Judicial Review reform: Bad data must not lead to weaker systems - the Public Law Project writing to the Office for Statistics Regulation, urging that the ONS investigate the statistical basis of the Review’s recommendations on Cart JR
    • the Ministry of Justice workshop held last month, at which it said it was closely scrutinising the statistical basis of recommendations on Cart JR

Key areas for discussion:

The Independent Review of Administrative Law

  • looking at the key areas considered in the Review, including:
    • whether the grounds for bringing judicial reviews should be codified in statute
    • if the types of decisions that can be judicially reviewed should be restricted
    • whether changes should be made to the availability of remedies in judicial review
    • the extent to which rule changes are needed, such as time limits, or who can bring a judicial review
  • examining the Review’s key findings, and the logical and statistical basis for its recommendations, as well as looking ahead to the implementation, including:
    • the impact of the decision not to recommend changes in certain areas - such as codifying judicial review, restricting the rules, or introducing time limits, and the impact of the costs regime on judicial review
    • implications of suggested reforms - the likely effects of the suggested reforms on parties in judicial review proceedings, as well as on judicial discretion
    • rule of law - looking at the implications for the Review’s recommendations on procedure, and the Lord Chancellor’s proposals for further development in this area 
    • Cart JR:
      • the impact of the review’s recommendations to reverse the decision taken in Cart, which the panel concluded had a disproportionate impact on judicial resources with an extremely low possibility of success, and should therefore be discontinued
      • assessing concerns that Cart judicial reviews should have been considered further in the Government’s post-review consultation, with further measures introduced to inhibit weaker cases rather than discontinuing
    • reforms to challenges - evaluating the effects of the recommended reforms on challengers in judicial review cases, especially vulnerable challengers
    • constitutional implications - assessing:
      • implications of the IRAL’s recommendations on remedies, which outlined that ‘suspended’ quashing orders should be recommended in statute, allowing courts to choose to give public bodies a time limited opportunity to remedy an unlawful act instead of immediately striking it down
      • suggestions that these proposed reforms could be used in particular in constitutional cases, with courts giving power to parliament to resolve disputes about the use of executive powers

The next stage of reform

  • considering the outcomes of the Government’s recently launched consultation on how to implement the Review’s core proposals
  • the impact of Government proposals to take its recommendations further by looking at further steps which were not proposed by the Review, with specific attention paid to:
    • legislating to clarify and strengthen the effects of ouster clauses, with the Review panel appearing sceptical of the need for major reform
    • legislating to effect prospective only remedies, including mandating that remedies for challenges of Statutory Instruments be prospective only

The agenda:

  • Judicial review in England and Wales: the current state of play
  • Key findings of the Independent Review of Administrative Law
  • Next steps following the IRAL’s proposals
  • The impact of proposed reforms to Cart JR and remedies in judicial review challenges
  • Reforming the judicial review process in England and Wales: next steps for policy

Policy officials attending:

Our forums are known for attracting strong interest from policymakers and stakeholders.

Overall, we expect speakers and attendees to be a senior and informed group including Members of both Houses of Parliament, senior government and regulatory officials involved in this area of policy, as well as lawyers, judicial representatives, charities, academics, representatives from think tanks, law centres, community legal services, pro bono groups, and service-user groups, along with commentators, together with reporters from the national and specialist media.


This is a full-scale conference taking place online***

  • full, four-hour programme including comfort breaks - you’ll also get a full recording and transcript to refer back to
  • information-rich discussion involving key policymakers and stakeholders
  • conference materials provided in advance, including speaker biographies
  • speakers presenting via webcam, accompanied by slides if they wish, using the Cisco WebEx professional online conference platform (easy for delegates - we’ll provide full details)
  • opportunities for live delegate questions and comments with all speakers
  • a recording of the addresses, all slides cleared by speakers, and further materials, is made available to all delegates afterwards as a permanent record of the proceedings
  • delegates are able to add their own written comments and articles following the conference, to be distributed to all attendees and more widely
  • networking too - there will be opportunities for delegates to e-meet and interact - we’ll tell you how!

Full information and guidance on how to take part will be sent to delegates before the conference



Keynote Speakers

Lord Faulks QC

Chair, Independent Review of Administrative Law

Sir Nicholas Blake

former High Court Judge, High Court of Justice of England and Wales (2007-2017) and Associate Member, Matrix Chambers

Chair

Lord Anderson of Ipswich QC

former Independent Reviewer of Terrorism Legislation in the United Kingdom (2011-2017) and Barrister, Brick Court Chambers

Speakers

Javeria Ijaz

Supervising Solicitor, Immigration and Public Law Department, Duncan Lewis Solicitors

Dr Timothy Baldwin

Barrister, Garden Court Chambers

Dr Joe Tomlinson

Research Director, The Public Law Project

Catriona Filmer

Head of Legal, Access Social Care

Katy Watts

Lawyer, Liberty

David Abbott

Chief Executive, Free Representation Unit