The Law Society of England and Wales (Law Society) has strongly opposed controversial proposals in the government’s consultation on judicial review reform, that it said would ‘allow unlawful acts by government or public bodies to be untouched or untouchable.’
In its 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 by the courts on a discretionary basis and legislating that, for challenges of statutory instruments, there is a presumption, or a mandatory requirement for any remedy to be prospective only; and legislating on the principles which determine when a court can rule an act unlawful, null and of no effect.
Boyce commented, “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.
“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.
“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.
Boyce warned, “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.”
As part of its response, the Law Society polled 1500 UK adults to gather public opinion on judicial review. 93 per cent deemed it unacceptable for government or public bodies to act unlawfully and 95 per cent agreed that judicial review is important because the government should follow the law just like everyone else.