Review of the review: The Ministry of Justice's latest review of the judicial review process

On 31 July 2020, the Ministry of Justice announced the launch of an independent review of administrative law in England and Wales and more specifically, the judicial review process.

What is judicial review?

Judicial review is the process by which a court determines the lawfulness of a decision made by a public body. Its purpose is to ensure that that public body is acting lawfully, fairly and is not abusing its powers. All bodies which carry out public law functions are open to challenges by way of judicial review.

It is an important check on the powers of public bodies, including the government itself in recent times, to ensure that they act lawfully. For example in June 2020, British Airways, Easyjet and Ryanair announced that they were pursuing a judicial review of the government’s decision to implement quarantine rules against all incoming travellers to UK. The case was, however, dropped last month when the government announced it would instead publish a list of countries to which the rules would apply.

Why is the judicial review process being reviewed?

Despite the government’s issuing of consultation papers with proposals for reform of the judicial review process in 2012 and 213 and subsequently, implementation of significant reforms under the Criminal Justice and Courts Act 2015, judicial review has remained firmly on the political agenda.

This time around, the review has been driven by the Conservative party’s 2019 General Election manifesto commitment to “ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.[1]

The purpose of this review is to evaluate “whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”.[2]

What will be reviewed?

The review panel, set to be chaired by Lord Edward Faulks QC, will examine a wide range of data, evidence and case law on the development of judicial review which will be used to consider:

• Whether the terms of judicial review should be codified in law
• Whether certain executive decisions should be decided on by judges
• Which grounds and remedies should be available in claims brought against the government and
• The judicial review procedure and whether reforms are needed, including timings and the appeal process

The proposed members for the review panel include Lord Faulks QC, Professor Carol Harlow QC, Vikram Sachdeva QC, Professor Alan Page, Celina Colquhoun and Nick McBridge. Once the review is complete, any recommendations for reform will be put forward to the Lord Chancellor and the Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office, Michael Gove.

The review’s findings, including any recommendations for reform of the judicial review process as we know it, are expected to be concluded later this year.