Judicial review: Law Society opposes reform proposals that make government 'untouchable'

The Law Society has strongly opposed controversial proposals in the government’s judicial review reform consultation, that it said would “allow unlawful acts by government or public bodies to be untouched or untouchable.”

In response to the consultation, which closed on 29 April 2021, the Law Society described judicial review as an essential check on power which ensures the public can hold government to account.

Law Society president, I. Stephanie Boyce, expressed concern: “Proposed changes to the ways in which legal challenges can be brought against the state would make life easier for the government at the expense of accountability and access to justice. That would damage the rule of law.”

Proposed changes include legislating to ‘clarify the effect’ of ouster clauses; introducing remedies which are of prospective effect only, to be used on a discretionary basis; legislating that, for challenges of statutory instruments, there is a presumption or mandatory requirement for remedies to be prospective only; and legislating on the principles which determine when a court can rule an act unlawful, null and of no effect. 

Oliver Wright, a partner and public law specialist at JMW Solicitors, said: “The government commissioned Lord Edward Faulks QC to conduct a review of judicial review. 

“The report was published on 18 March 2021 and clearly did not meet favour with the government, because rather than accept its considered and cautious recommendations, the government has taken a more radical option which some might view as a retaliatory move to the decisions of the Supreme Court in the Brexit and prorogation cases. 

“Instead of referring any concerns arising from the Faulks report for further independent study, the government has unilaterally developed its own ideas for law reform on which it intends to legislate, which presents a real danger of stifling access to justice”. 

Boyce agreed: “The Ministry of Justice has gone beyond what was recommended by the expert panel set up to advise it, with no evidence to back up this over-reach.”

She also expressed concern around ouster clauses: “Ouster clauses, which the government proposes to enforce more often, ringfence government decisions beyond the reach of the courts. They should only be used in rare, exceptional circumstances with strong justification. 

Her view is that the government wants “carte blanche”. She added, “… it gives no vision for how or when or why it considers that ouster clauses would and would not be appropriate.” 

Wright commented, “Lord Carnwath has been particularly critical of what he describes as the government’s ‘muddled’ discussion around ouster clauses. 

“He observes the government has embarrassingly misquoted Lady Hale in identifying the courts as ‘the servant of Parliament’. In other damning comments, he said the assertion that case law has led to the courts not giving effect to ouster clauses is ‘wholly unfounded’ and notes the government’s failure to identify the type of ‘specific and limited’ case where ouster clauses might be justified.”

Boyce warned: “Collectively, the most controversial proposals would allow unlawful acts by government or public bodies to be untouched or untouchable. This would harm individuals that challenged them and others who might fall foul of the same unlawful act or decision in the future. 

“Proposals would restrict judicial discretion to an unacceptable degree and deny successful litigants an effective remedy. For instance, suspended quashing orders as an option available to the courts could be a good idea – but would curtail judicial discretion if mandated or presumed as government suggests, turning the panel’s recommendation on its head.

“The effect of the proposals would be a fundamental distortion of the protection judicial review is supposed to provide against state action, undermining the rule of law and restricting access to justice.”

Wright shared Boyce’s concerns: “The government says the time is not right to propose far-reaching, radical changes, yet some of the proposed reforms are exactly that. If introduced, they would alter the system of judicial review, undermining it as an accountability mechanism. 

“Ultimately, making it less attractive for claimants to bring claims and restricting judicial discretion as the government proposes, would likely lead to fewer findings of unlawful acts by public bodies because they are going unchecked.”  

As part of its response, the Law Society polled 1500 individuals to gather opinion on judicial review. 93 per cent deemed it unacceptable for government or public bodies to act unlawfully and 95 per cent agreed judicial review is important because the government should follow the law just like everyone else.