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On 7 October upwards of three hundred “activist lawyers” (otherwise known as … “lawyers”) gathered virtually for a Blackstone Chambers webinar on judicial review reform, hoping to identify the wisdom of public law crowds. The webinar was chaired by Thomas de la Mare QC with a panel comprising Catherine Callaghan QC, Charlotte Kilroy QC, Tom Hickman QC and Gayatri Sarathy. What follows is a digest of the morning’s discussions.

Tom de la Mare QC started by introducing the terms of reference for the Independent Review of Administrative Law. Did those terms, he wondered, wrongly assume that any problems are the fault of the legal system? What factors were driving quantitative or qualitative changes in the judicial review cases being brought?

Are there problems with how executive policy, rules and decisions are being made? Do different problems manifest for different types of instrument? If a healthier balance between JR and executive decision-making is required, how could the latter change to achieve this?

Tom referred to an "epidemic" of statutory instruments: ironically the pandemic itself, as well as Brexit, was producing many of these.  The making of these at speed was displacing debate into the Courts which should take place in Parliament – what Tom calls the 'toothpaste effect'. There had been failures to consult, to consider alternative ideas on their merits, to meet information asymmetries by the provision of information. Politicians and their advisers had appeared to push decisions through at breakneck speed with inadequate discussion with those affected.

We should not, in conclusion, assume that judicial review is a brake or constraint on good governance – that has not been established by evidence. What also required investigation was whether any uptick in judicial review was a function of bad governance. There should be no attempt to diagnose problems in judicial review without simultaneous open-minded enquiry into whether the problems are in fact caused by the manner of government.

Speaking next was Tom Hickman QC, who took us through some previous reviews of public law including the JUSTICE/All Souls committee (in effect an unofficial Royal Commission undertaking a broad review of English administrative law).  In her review of that committee’s Review entitled 'Don Quixote to the Rescue?', Professor Carol Harlow had suggested that the broad terms of reference of that review were the 'seeds' of its own 'disaster'.

There have been various further discussions including the Law Commission discussion paper on monetary remedies in judicial review and the Jackson Report on costs which led to the Aarhus costs regime for environmental judicial review.  Issues were raised as to (a) whether this was indeed the time for a further review of public law; (b) if so whether the task was too broadly defined; and (c) whether the Panel had available to it sufficient resources to carry it out.

Pausing there it is of interest to note, on the question of the resources and make-up of the so-called Independent Review panel, that a group of leading claimant law firms has reportedly written to the Lord Chancellor to voice concern that panel members are not fully representative of those concerned about the future of judicial review.

Charlotte Kilroy QC next considered paragraphs 2 and 3 of terms of reference of the Review, relating to (a) justiciability and (b) the grounds for judicial review (and associated remedies):

   “2.Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

   3.Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful”

The terms of reference are accompanied by these important footnotes:

   “D. The Panel will focus its consideration of the justiciability of prerogative powers to the prerogative executive powers as defined in 3.34 of the Cabinet Manual.

    E. Paras 2 and 3: Historically there was a distinction between the scope of a power (whether prerogative or statutory or in subordinate legislation) and the manner of the exercise of a power within the permitted scope. Traditionally, the first was subject to control (by JR) by the Court, but the second was not. Over the course of the last forty years (at least), the distinction between “scope” and “exercise” has arguably been blurred by the Courts, so that now the grounds for challenge go from lack of legality at one end (“scope”) to all of the conventional [JR] grounds and proportionality at the other (“exercise”). Effectively, therefore, any unlawful exercise of power is treated the same as a decision taken out of scope of the power and is therefore considered a nullity. Is this correct and, if so, is this the right approach?”

And here's the part of the Cabinet Manual being referred to on the different types of prerogative powers

   “3.34 Prerogative powers may be divided into the following broad categories:

   • Constitutional or personal prerogatives: these are the powers that the Sovereign continues to exercise either personally or on the advice of the Government. They include the powers to: appoint and dismiss the Prime Minister and other ministers; grant assent to legislation; and prorogue Parliament.

   • Prerogative executive powers: these are the powers that are exercised on the Sovereign’s behalf by ministers. Most prerogative powers fall into this category. They include powers in relation to foreign affairs, to deploy the Armed Forces and to grant mercy. The limited prerogative powers that are relevant to devolved functions are exercised by ministers in the Devolved Administrations.”

It's a very striking feature of these terms of reference, as Charlotte Kilroy QC points out, that they are not only asking the Panel to address incredibly complex questions of public constitutional law, but also questions which have either recently been considered & decided by the Supreme Court or are shortly to be addressed.   Yet the Panel is asked decide whether the Supreme Court was ‘correct’ and has taken the ‘right approach’.

Thus for example the difficult and sensitive issue of justiciability of prerogative powers was recently considered in Miller No 2 in September 2019, by an 11 Judge Supreme Court, having heard several days of argument, and having analysed extensive jurisprudence on the issue.

As for the development of judicial review in relation to what the Footnotes (above) describe as ‘scope’ and ‘exercise’ of a power, this appears to refer to the historic difference between jurisdictional or non-jurisdictional errors of law when considering determinations of tribunals or inferior courts, and the change in approach heralded by the Anisminic judgment in 1969. That case was understood as having introduced ‘a single category of errors of law, all of which render a decision ultra vires’ and a thus a nullity. The law on this issue was comprehensively reviewed in Privacy International also in 2019, by a seven judge Supreme Court, with the judgment traversing extensive jurisprudence on the issue, including several other seminal House of Lords and Supreme Court.

And the issue of nullity, is due to be considered again by the Supreme Court in December 2020 in a case called TN.

All this is a demonstration of the constitutional and practical dangers of the exercise which the Panel has been given by the Terms of Reference.  Should an Independent Panel of lawyers appointed by the government to consider possible law reforms be asked to consider whether judgments of the Supreme Court, including judgments where the government was a defendant, are ‘correct’ and ‘the right approach’? Should such a Panel consider issues of law which are currently before the Supreme Court, in parallel? If the Panel reaches a different conclusion or prefers a different analysis to the Supreme Court on any of these issues, should the government be able to decide that it prefers the approach to the law taken by the Panel?  Is it constitutionally appropriate for Parliament be asked by the government to legislate in accordance with the views of the law taken by the Panel, rather than the Courts? On a practical level, can this Panel in this timescale offer an authoritative and reliable analysis of any of these issues, given the scope of the Terms of Reference?

Concluding her contribution, Charlotte recalled that the difficulty of the exercise means it has been the consistent view of the Law Commission, whose statutory function it is to consider law reform, that it should not consider the substantive law of judicial review, which is more appropriately left for judicial development. The Commission also opined as long ago as 1969, that were this task ever to be undertaken “The reconciliation of the requirements of efficient government with the rule of law is so vital an issue that it calls for the judgment of a body which includes members with legal, administrative and political experience. We would, therefore, envisage an inquiry by a Royal Commission or by a committee of comparable status.”

Next Catherine Callaghan QC spoke about the Call for Evidence published by the Independent Review Panel.

She first noted a number of differences between the Terms of Reference and the Call for Evidence. The former had apparently been drafted by a member of Lawyers for Britain, and it seemed clear that they had been written with a particular political agenda in mind.  By contrast, the Call for Evidence was produced by the Independent Review Panel itself.

Whereas the Terms of Reference focused on codification and justiciability, the Call for Evidence was more focused on procedural issues, such as costs, time limits and standing. One senses a reluctance on the part of the Panel to go down the codification route, or to attempt to delineate or restrict the areas that are subject to judicial review. Eight of the questions in the Call for Evidence are concerned with matters of procedure. This may give an indication of where the Panel’s appetite lies.

There are certain topics (such as the duty of candour, and rights of appeal) which are covered in the Terms of Reference but not the Call for Evidence. And conversely, there are questions raised in the Call for Evidence about topics that do not feature in the Terms of Reference – for example, ADR and settlement.  

The Call for Evidence contains a Questionnaire to Government Departments, asking about whether various aspects of judicial review “seriously impede the proper or effective discharge of central or local government functions”.   There are a number of oddities about this questionnaire:

   ·      It is addressed only to Government Departments.  It is not clear whether the Questionnaire has been sent to any other JR defendants such as Local Authorities, Regulators, and other public bodies.

   ·      Clearly is not intended for JR Claimants.

   ·      It is concerning that the Questionnaire appears to be designed to gather evidence that judicial review is not working in practice, or somehow gets in the way of Government carrying out its functions. There appears to be no room for consideration of the positive impacts of judicial review on administrative decision-making, such as (for example) better record-keeping, more consultation and information, more carefully considered, structured and organised decisions.

There is, moreover, no opportunity for those responding to the Call for Evidence to see or comment upon responses made by Government Departments to this Questionnaire before the deadline for responding to the Call for Evidence.  So we are operating in a vacuum.

Further, there are only six weeks to respond to the Call for Evidence. This is in a context where the Law Commission has previously taken years to consider the same issues.  Responses are being prepared by both ALBA and JUSTICE, but practitioners and firms are encouraged to submit their own responses in addition (see below).

Catherine next turned to consider the duty of candour and disclosure.  The Terms of Reference ask whether procedural reforms to judicial review are necessary in relation to the duty of candour, “particularly as it affects Government”, and asks respondents to address “the burden and effect of disclosure in particular in relation to ‘policy decisions’ in Government”.  The clear implication was that compliance with the defendant’s duty of candour is an imposition or burden on Government.

Catherine said that the public law bar have a number of concerns about any attempt to restrict or limit the duty of candour.

Primarily, it would undermine the key principle underlying the duty. The rationale of judicial review is to ensure lawful, fair and just public administration. It is well-established that a public authority’s objective should not be to win the case at all costs, but to assist the court with explaining the reason for the decision and ensuring that the decision taken was lawful and fair.  There should, in principle, be no difficulty with the Government Department being able to locate and disclose the documents underpinning its decisions. If Government Departments are failing to collect their data or to keep a proper record of their decision-making, the solution does not lie in reducing the duty of candour, but in improving data collection and record-keeping.  It was very important for public authorities to act transparently in judicial review litigation.            

The final speaker, Gayatri Sarathy, considered two topics concerning the procedural reforms proposed in paragraph 4 of the Terms of Reference:

First, what reforms have been made in recent years? Is there a sufficient basis for further “evidence-led” policy-making in this area?

Second, are there any areas of public law procedure that might benefit from consideration, but do not appear to be covered by the Terms of Reference?

Paragraph 4 of the Terms of Reference provides as follows:

   “Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.”

Gayatri said that there had been several reforms in the last few years to public law procedure. In 2014-15, the Ministry of Justice’s proposals led to the introduction of Part 4 of the Criminal Justice and Courts Act 2015 (“CJCA”). The reforms included the introduction of costs capping orders, adverse costs orders on interveners and the “no difference” test for granting permission and relief.

By section 31(3D) of the Senior Courts Act, as amended by the CJCA, the High Court must refuse to grant permission if “it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” The courts may consider this question of their own motion, but they must do so if requested by the defendant. The court has limited discretion to grant permission even if the “no difference” test is made out where it considers that it is appropriate to do so for reasons of “exceptional public interest”. The question is also considered again at the substantive stage. Under section 31(2A), the High Court must refuse to grant relief if the “no difference” test is found to be satisfied.

These reforms were said to have been brought in, like the current Review, to “streamline” process. In the first reported case in which the question was considered, R (Logan) v London Borough of Havering [2015] EWHC 3193 (Admin) at §59, Mr Justice Blake remarked: “I do not rejoice in the prospect of having to make such assessments in cases like the present at the permission stage. It seems to me to have the potential for increasing the length, cost and complexity of the proceedings and bringing an unwelcome constraint on the court’s flexible assessment of the interests of justice. In the absence of clear pointers at the time that the flaw was a technical one that made no difference, the court will inevitably be drawn into some degree of speculation or second guessing the decision of the public authority that has the institutional competence to make it.”

Back when these reforms were introduced, Ben Jaffey and Tom Hickman wrote an article in the UK Constitutional Law Association Blog, in which they said: “It is clear that the concern is not to make judicial review more effective or more streamlined, but a means of making it more difficult to pursue. … Courts will become embroiled in lengthy evidential disputes about a new defence of ‘makes no difference’.”

We’re five years on, and we’re seeing just that. Since April 2015:

   ·      Around 150 cases have considered the application of s.31(2A) (so, that is cases in which the claimant has won on one or more of their grounds);

   ·      Relief has been refused by reason of s.31(2A) in around 60/65 cases (so, around 40%);

   ·      No case has succeeded on the basis of the exceptional public interest test alone.

In light of these recent reforms, Gayatri asked, what is the purpose of paragraph 4 of the Terms of Reference? It asks: “Whether procedural reforms to judicial review are necessary, in general to ‘streamline the process’ and, in particular … (e) on the principles on which relief is granted in claims for judicial review ….”

What the Review does not appear to ask is whether the current reforms, which are still at a relatively nascent stage, are effective in “streamlining the process”.  Nor is there any consideration of whether the concerns expressed before the introduction of these reforms have turned out to be valid – for example, as some of the consultees to the MoJ’s reforms suggested, have they meant that valid claims and substantive illegality has not been ventilated or remedied, with implications for confidence in the effectiveness of judicial review?  It is, in any event, difficult to see what further “streamlining” is envisaged by the current Review, or what the evidence base for that would be.

Gayatri then moved on to her second topic: are there areas which might be in need of review which do not appear in the Terms of Reference? Examples might be the admission and role of factual and expert evidence; regulation of sources of litigation funding and heightened scrutiny over statutory instruments.

In conclusion, the Chair thanked all who had attended. (And thank you to all who have read this digest, too!) The most important thing now is – if you have any public law experience and expertise (whether as Judge, barrister, solicitor or client) please do respond to the call for evidence – by noon on 19 October 2020 which is very soon!  Responses are to be sent to [email protected] with further details on how to respond in the Call for Evidence. Thank you.

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