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 and the government response.
The Panel Report
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 in 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.
The Government Response
The initial website response was brief, Judicial Review: Proposals for Reform – Ministry of Justice – Citizen Space. It welcomed the Report, and made clear that it intended to pursue reforms proposed by the Panel concerning the Cart judgment and suspended quashing orders. It also indicated that it would be pressing forward with consideration of ouster clauses. The government response did not mention the fact that the Panel had pushed back on the great majority of the suggestions contained in the terms of reference. It fastened instead on the ‘takeaway’ that best fitted its agenda going forward, which was the cautionary note in the Report concerning the boundary line between the court’s proper supervisory jurisdiction and the merits. The government summarises the point in the following way.
The Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made. The reasoning of decision makers has been replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament.paragraph 2
This will be centre stage in government initiatives going forward, as is evident from early political exchanges on the Report. It is, therefore, important to interrogate this suggestion closely. The reality is that statements to the effect that the courts have crossed the line between supervisory jurisdiction and merits review are conceptually flawed and politically charged in equal measure.
It is helpful to begin with a simple paradigm case: a statute provides that if an employee is injured at work then an agency may give compensation, or alternatively shall give due compensation. The ‘merits’ in this context connotes the decision whether to grant compensation, and if so how much. There are two errors in the preceding quotation and the academic reasoning on which it is based.
Firstly, judicial review has never been solely about the agency’s reasoning process. Central features of judicial review are indubitably substantive and have always been so. Consider the standard lexicon of doctrinal grounds for intervention. Judicial review for error of law, propriety of purpose and relevancy are substantive. So too is reasonableness review, as seen below. They circumscribe the decision that the agency can reach on the merits through, for example, judicial oversight as to the correct legal meaning of the term employee, or the purposes that can be served when deciding how to exercise the discretion.
Secondly, there is a line that demarcates the boundaries of legitimate judicial review, but it is not captured by a contradistinction between supervisory jurisdiction and merits review. The true position is as follows.
(a) It is not for the courts to substitute judgment on the merits.
They should not replace their choice as to how the discretion ought to have been exercised for that of the administrative authority. They should not intervene, reassess the matter afresh and decide, for example that they would have awarded certain compensation to the employee, if they had been the primary decision-maker. Decisions as to political and social choice are made by the legislature, or a person assigned the task by the legislature. To sanction judicial intervention simply because the court would prefer a different choice to that of the administrator runs counter to this fundamental assumption, and would entail a re-allocation of power from the legislature and bureaucracy to the courts. This primary proposition is based on the separation of powers and accepted by pretty much everyone working in this area, academics and courts alike. UK courts do not substitute judgment, and are fully mindful of the limits of their legitimate role, as attested to in thousands of cases.
(b) However, it has also been accepted for circa 400 hundred years that there should be judicial control over discretionary determinations, which do not lead to substitution of judgment, or too great an intrusion on the merits.
The salient point for present purposes is that the distinction between merits review and non-merits review is not helpful in this regard. The reason is readily apparent: all tests of substantive judicial review entail the judiciary in taking some view of the merits of the contested action, viz, in the preceding example whether compensation should be given and the amount thereof. This is so even in relation to the classic Wednesbury test. What distinguishes different tests for review is not whether they consider the merits or not, but the stringency of the judicial scrutiny. It is possible to range different tests for review along a spectrum. Classic, limited Wednesbury review is at one end of the spectrum, judicial substitution of judgment, whereby the court imposes what it believes to be the correct result lies at the opposite end of the spectrum. Various forms of heightened Wednesbury review occupy intermediate positions. In terms of case law, the reality is that the default position is low intensity Wednesbury review, whereby the courts accord very considerable leeway to the primary decision-maker when reviewing discretionary decisions.
(c) It is for this very reason that statements to the effect that a court in a particular case has crossed the line between legitimate supervisory jurisdiction and illegitimate merits review are conceptually flawed and politically charged in equal measure.
When used by a commentator this statement in reality betokens a contestable value judgment as to how intensively the court should have reviewed the particular discretionary determination, which includes issues concerning the reasons that will be required to support the decision and the evidence backing up those reasons. The appropriate intensity of review may well be contentious, involve close inquiry as to the nature of the statutory scheme and the interests affected thereby. It is then tempting for a commentator to obviate this inquiry, and take the short cut through recourse to the dichotomy between supervisory jurisdiction and merits review, as if mere invocation thereof sufficed to accord their contestable, often unspoken, view as to the proper intensity of review in the instant case with canonical status. We should perforce engage in reasoned debate about whether the court deployed the appropriate intensity of review in a particular case. The answer is not, however, predetermined by a magic line between supervisory jurisdiction and merits review, and use of the divide merely reflects in a conclusory manner a prior substantive determination as to the proper intensity of review, adding nothing to that determination.
The Government Response and Consultation Exercise
The Government Response constituted the introduction to a longer government document, ‘The Government Response to the Independent Review of Administrative Law’, CP 408, which is designed to carry forward the inquiry into judicial review.
The government agrees in general with the Panel’s view that further action should not be taken with respect to codification, justiciability and grounds of review, (paras. 44-45). It is, however, readily apparent from a reading of the Response that while the government agrees with the twin recommendations that emanated from the IRAL Panel, it wishes nonetheless to press further with reforms in a number of directions that will impact on judicial review. It is axiomatic that the government is not bound by anything that is decided by an independent panel. The reader is, nonetheless, left with the impression that the MoJ will proceed in the direction that it wishes through a further consultation over which it is in control.
To this end the Government Response sets in train a second consultation exercise. The range of questions posed in this consultation is far-reaching. This is not the place to engage in substantive comment on the questions that have been posed in this consultation mark II. The approach is premised on certain assumptions that run through the initial pages of the government response, which are concerned with the ‘Constitution and Judicial Review’. These include, as noted earlier, the assumption that a dominant feature of judicial review is that courts substitute their judgment for that of the primary decision-makers, (para. 2). The Response is grounded on a particular conception of the rule of law, espoused by Richard Ekins, (para. 26), which is in itself based on highly contestable assumptions concerning this concept, and equally contestable assumptions as to how judicial review operates. The Response is also premised on the view that the principle of legality has been pressed further than is warranted, (paras. 27-28). It is, moreover, predicated on the assumption that historical developments in administrative law are not ‘in any way indicative of how the courts and the Constitution “ought” to evolve in the future’, with the consequence being, inter alia, that Parliament is ‘completely free to add to or remove’ from the principles of judicial review in specific cases. (paras. 24-25).
This is not the place to engage in debate about the preceding assumptions, save to reiterate that I questioned one central hypothesis in an earlier blog. Suffice it to say the following in this context. The early pages of the Government Response consider judicial review and the constitution. The principal target is, in reality, alleged judicial over-reach in relation to review of discretionary power. What is missing is, however, any consideration as to why the courts engage in review of discretionary power, or the values served by such review. The answer may itself be contestable to some degree, but the question is central. There are three core values served by such review.
There is the need to ensure that the executive does not subvert the aims of the legislation, by using the delegated power in ways that are unreasonable: the object of a statute providing that employees who are injured at work may be given compensation, or shall be given due compensation, may be subverted if the compensation is rarely given, or if it is parsimonious.
There is the related, but distinct idea, that discretionary power should be subject to review to enhance and support the democratic process broadly conceived. Legislatures quite properly accord discretionary power to ministers, agencies and the like. The discretion is granted because not all aspects of the regulatory schema can be specified with exactitude in the enabling legislation. Judicial oversight can help to ensure reasoned administration, transparency as to the factors that shape the discretionary choices, and some substantive control over the choices thus made, as elaborated most recently in the work of Jerry Mashaw.
There is the idea that discretionary power should be controlled to ensure that it does not impose excessive burdens on those affected by it: if a statute empowers an agency to charge those who benefit from the work undertaken by the agency, then review is felt to be warranted to ensure that the burdens flowing from the work do not fall excessively on particular individuals, more especially when the beneficiaries of the work are a broader class of people.
The first and third of these values are exemplified by foundational case law. This duality is evident in Rooke’s Case, (1598) 5 Co. Rep. 99b, where the court concluded that the Commissioners’ of Sewers acted unlawfully, since the ‘commissioners ought to tax all who are in danger of being damaged by the not repairing equally, and not him who has the land next adjoining to the river only’. The reasoning strikes a remarkably modern chord. If the charge could be levied solely on the owner with land nearest the river, this might defeat the purpose of the statute ‘for perhaps the rage and force of the water might be so great, that the value of the land adjoining will not serve to make the banks’(100a), and it thus followed that he who derived the benefit should share the burden – Qui sentit commodum sentire debet & onus.
It is therefore especially important to ensure that reform, whatsoever form it takes, is shaped by an understanding of the values that underpin judicial review. The preceding analysis is not premised on the assumption that the courts are the only mechanism for achieving these values. It is premised on the assumption that any change is conducted mindful of the values that underpin this area of judicial review.
To return to the specific inquires in consultation mark II: it is long, and the time to respond is correspondingly short. There are nineteen specific questions posed, and the time limit is 29th April 2021. There is perforce no reason why a person or group should respond to all facets of this consultation exercise. The range of questions is, however, broad. Some are relatively specific, such as the inquiries concerning the modality for bringing about change in the Cart JR orders, and suspended quashing orders. Other questions raise difficult issues of principle, such as those concerning statutory instruments and ouster clauses. There is little over a month to respond to consultation mark II, and that is very short indeed. The government should consider revising this deadline. The fabric of judicial review has existed for over 400 hundred years. There is no reason for modification thereto to be subject to such tight time constraints.
Paul Craig, Emeritus Professor of English Law, University of Oxford
This post is a cross-posting with the Oxford Human Rights Hub.
(Suggested citation: P. Craig, ‘ The Panel Report and the Government’s Response’, U.K. Const. L. Blog (22nd March 2021) (available at https://ukconstitutionallaw.org/))