September 27 2023

Faulks review: Government promises to ‘go further’ on judicial review reform

Faulks review: Government promises to ‘go further’ on judicial review reform

The lord chancellor pledged to ‘go further’ to ‘protect the judiciary from political entanglements’ by reforming judicial review despite the modest recommendations made by its own independent review. 

The Faulks review, which also published yesterday, concluded that ministers could ‘be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action’. ‘Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers,’ it added.

However the Lord Chancellor, Robert Buckland told the House of Commons that the panel’s recommendations were a starting point but the government ‘would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process’.

The Government has published a 200 page report of the Independent Review of Administrative Law (IRAL) and began a new consultation on reform of judicial review.

Daniel Machover, head of civil litigation at Hickman & Rose solicitors, said that the review ‘largely reflects that it was asked to fix a problem that doesn’t exist’. ‘The Government’s response is effectively an admission that the Review did not make the recommendations the Government desired,’ he added.

‘Reforms that affect the carefully balanced system for judicial review could make it harder for people to hold governments to account and should not be undertaken lightly,’ said Jo Hickman, director of Public Law Project. ’The stakes are high and the evidence threshold for change should reflect that. It is striking that the overwhelming majority of respondents to the IRAL’s call for evidence support either no or only gradual reform.’

Hickman said it was clear that the Panel’s recommendations were ‘relatively modest’ having gone to great lengths to ‘weigh up a huge volume of evidence, including from 14 Government departments’. She added: ‘There is a contrast between the substance of the Panel’s report and the tone struck by Government as the Lord Chancellor spoke of the need to ‘restore a proper balance between the institutions’ and ‘preserve the integrity of Judicial Review’.’

‘The Review has exposed as false the Government’s argument that judicial review is being misused for political ends. But the Government appears unwilling to give up.’
Jo Hickman, PLP

Daniel Machover added that the suggestion that the Civil Procedure Rules Committee should potentially consider restricting who can bring judicial review proceedings was ‘extremely concerning’.

The human rights group Liberty warned that the recommendations to weaken judicial review should be viewed ‘as part of a wider attack on our ability to hold the Government to account’ coming just days after restrictions on protest came before Parliament earlier this week.

‘By suggesting it shouldn’t be possible to bring legal challenges against certain decisions, and limiting court powers when they find the Government has acted unlawfully – the Government is stifling people’s ability to challenge its decisions through the courts, even if those decisions cause harm or infringe basic human rights,’ commented Sam Grant, Liberty policy and campaigns manager.

Liberty flagged up concerns reforms to asylum appeals. Under current rules a person can appeal their claim in the First-Tier Tribunal and, if this fails, the Upper Tribunal which can refuse permission for this kind of appeal to go ahead. That refusal can be judicially reviewed.

‘This is only permitted in decisions where there are extreme consequences for the individual, or in cases which raise an important point of principle or practice affecting large numbers of similar claims,’ says Liberty; adding this ‘a fair and proportionate system’. ‘Removing this protection would set back access to justice and make it harder for people to enforce their rights,’ the group adds.

‘This Government, through its handling of the Windrush scandal, has shown why its treatment of migrants must be scrutinized and its decisions sometimes contested,’ Sam Grant said. ‘And while this Government is targeting migrants in a popularist move to push through these changes, the fact is these changes would affect all of us, reducing our ability to stand up for our rights.’