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Members of our Public and Administrative Law team make no apology for being critical of the Government’s approach to the Judicial Review Reform, particularly in the face of the IRAL (Independent Review of Administrative Law) recommendations, and the lack of justification for any major changes to the powers of the courts in this area.
The Government appear to have been unhappy about the decisions of the Supreme Court in the Miller litigation. The court’s decision in Miller (No. 2) struck down the Prime Minister’s advice to the Queen (and decision) to prorogue Parliament in 2019. The result was that the Government set up the Independent Review of Administrative Law under Lord Faulks QC to look at judicial review and the courts’ approach to decisions of government. IRAL reported in March 2021, and did not recommend any significant changes. In fact one of its conclusions was ‘the great majority of cases involve the straightforward application of well-established judicial review principles.’ And also that ‘Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action.’
Nevertheless, and one has to say in the spirit of the thoroughly bad loser, the Government produced almost immediately a White Paper with a short consultation period suggesting changes on a number of issues. Some were purely procedural but others seek changes on some fundamental aspects of administrative law – including the underlying basis for judicial review, the concept of nullity and the use of suspended and prospective quashing order (i.e., ones which would operate in the future only).
Our response to the consultation document can be found here.
In November 2020, the team also responded to two important Government consultations on the White Paper and Judicial Review. Read more here.