The Independent Review of Administrative Law-The Panel Report
The Report of the Independent Review of Administrative Law (IRAL) was made public on 16 March. It stretches to 195 pages in total, although one third of this comprises annexes and the like. This blog considers the Report of the Panel; an accompanying blog addresses the government response.
The IRAL Panel is refreshingly open and candid in its report. This is exemplified by the very first paragraph in which it notes the disquiet expressed in a number of submissions as to the breadth of its remit and the brevity of time given to complete it, to which the Panel responds that it ‘had some sympathy with this view’. The Panel’s candour is also evident in its statement that it chose not to revisit controversial cases in any detail, in part because such cases were not necessarily indicative of structural malaise in the system, and in part because Panel members did not, in any event, agree on whether the case was ‘right’ or ‘wrong’. The Panel’s openness is apparent yet again in its recognition of the political backdrop to the creation of IRAL, framed as it was by the two Brexit cases (para. 20).
The Panel generally came out against significant change in relation to the issues that it was asked to consider, with recommendations for only two limited reforms.
The first of these issues concerned codification. It considered two options in this respect, statement of general principle and a detailed list of the grounds of review. The Panel acknowledged that the former could have some benefits, in terms of stamping such principles with the approval of Parliament, while preserving the flexibility of the common law, but did not regard this as a real form of codification (para. 1.11). The Panel was sceptical as to the latter, more detailed specification of the grounds of review, in the light of experience in South Africa and Australia, noting that the detailed approach went both too far and not far enough, since it rendered it difficult for the law to be kept up to date, while at the same time presenting an aura of completeness that belied reality (para. 1.15). The Panel then considered four different codification approaches that might be used in the UK. It reasoned that any statutory formulation of judicial review would be interpreted as operating within the framework of the common law, and concluded, in line with the great preponderance of submissions, that on balance little significant advantage would be secured through codification (para. 1.43).
The Panel was also doubtful as to whether there could or should be changes in relation to the second issue, which concerned justiciability. It noted developments whereby the courts had eroded islands of non-justiciability, but rightly pushed back any suggestion that the Miller cases betokened the abolition of all remaining areas of non-justiciability, concluding that notwithstanding the constitutional importance of the cases, they were nonetheless unlikely to have wider ramifications, given the unique circumstances that generated the litigation (para. 2.37). The Panel addressed the foundations of non-justiciability, one being lack of knowledge and expertise, the other being separation of powers. It provided examples of instances where it thought that the court should have shown greater reticence on the former ground (para. 2.50), but these conclusions are contestable in relation to the cases cited, more especially given that relative expertise is taken into account when determining the intensity of review. The great majority of submissions were against legislative intervention in relation to justiciability (para. 2.58). The Panel concluded in similar vein for the following concatenation of reasons: cases raising serious constitutional issues were rare; individual problematic cases did not betoken a systemic problem; legislating in this area could be problematic; it could have negative consequences by freezing the law; non-justiciability clauses could be problematic under the Human Rights Act 1998; and the circumstances in the Miller litigation were unlikely to recur (paras. 2.68-2.79). The Panel, nonetheless, made clear that it was legitimate for Parliament to legislate on this issue if it wished to do so (para. 2.78), and duly considered the different forms that such legislation might take, distinguishing between non-justiciability provisions that were akin to an ouster clause, with all the problems thereby entailed, and those that were not, because the subject matter thereof had never been regarded as being susceptible to judicial review (paras. 2.80-2.89). The preceding reasoning was then embodied the Panel’s conclusions. It was against any general legislation which, under the guise of non-justiciability, sought to limit the remit of judicial review, noting that this was not warranted empirically, that it would be problematic from the perspective of constitutional principle and in the light of existing case law on ouster clauses. By way of counterpoise, the Panel accepted that it might be legitimate to ‘correct’ a justiciability determination in relation to a particular topic (paras. 2.94-2.101).
The Panel was equally sceptical concerning legislative intervention in relation to the third issue in the terms of reference, viz, whether there should be some statutory tailoring of the grounds of intervention and the subject matter of the case. It rightly concluded that the courts already do this to varying degrees, and that there would be very great difficulties in legislating in this regard (paras. 3.13-3.17). Such legislation would be likely to be complex and ineffective in equal measure. However, the Panel also counselled the importance of judicial restraint (paras. 3.23-3.24), and the need for some greater consideration of the category of constitutional rights (paras. 3.28-3.34). It did, moreover, recommend that what have become known as Cart JR applications should be stopped, given the number of such applications, the resource implications thereof and the very low incidence of success (para. 3.46). It also recommended that courts should be accorded the power to make a suspended quashing order, which would automatically take effect when certain conditions were met (paras. 3.49, 3.68). This is a valuable suggestion, and would improve the remedial flexibility presently available. This suggestion is supported by reasoning that is more complex than is necessary, predicated on the assumption that there is some fundamental tension with the nullity of invalid acts. This gives rise to some pretty curious reasoning, none more so than in paras. 3.61-3.64. The bottom line is that the courts have always had remedial discretion, and this has been exercised on the assumption that there has been an error that would justify invalidation of the contested measure.
The final limb of the terms of reference asked the Panel to consider a range of issues concerning procedure. The Report draws on valuable data concerning the incidence of review, and the volume of applications dealing with asylum and immigration. The evidence did not, said the Panel, suggest that unmeritorious claims were being allowed to proceed (para. 4.74). The Panel concluded against any change in the law relating to standing, while encouraging public bodies that felt that there was a problem in this regard to raise the issue before the court (paras. 4.99, 4.166-4.167). The Panel also concluded against any change in the time limits for bringing judicial review applications (paras. 4.149, 4.171). It recommended that criteria for intervenors should be developed by the Administrative Court (paras. 4.108, 4.168), and furnished helpful suggestions as to how the duty of candour could be further clarified (para. 4.131).
The final topic for consideration was judicial review in Scotland, Northern Ireland and Wales. The submissions were, without exception, opposed to, or at best not persuaded of, the need for further reform. There was also concern that any statutory intervention might result in a ‘dual’ or ‘two-tier’ system, in which ‘UK wide’ reserved or excepted matters and ‘other’ matters were treated differently. The Panel agreed that this would be highly undesirable (para. 5.50).
The preceding conclusions are drawn together in the overall conclusion to the Report (p. 131, para. 8). This is preceded by an observation to the effect that the Panel was nonetheless aware of the fact that there had been cases where the courts had exceeded a supervisory approach and imposed standards of scrutiny that exceed what is legitimate within a supervisory jurisdiction, p. 131, para. 7). This observation was, unsurprisingly, picked up by the government in its response, which will be considered in the accompanying blog.