Further consultation on Judicial Review reform – implications for Planning law claims

IRAL’s review of Judicial Review 

The IRAL panel was asked by the Government to focus its review on four key areas of potential reform, namely codification, non-justiciability (whether certain decisions should be taken out of the ambit of judicial review), grounds of review and whether procedural reforms are necessary. 

Following its consultation, the IRAL submitted its findings to the Government in January 2021 and the Government published its response in March 2021. 

The evidence collected by the IRAL showed that the majority of respondents supported either no or only gradual judicial review reform. The IRAL Panel also found that the checks and balances in the system are currently working well, and that seeking to curtail the powers of the judiciary might have the effect of harming the high international reputation of UK judges. It also noted a growing tendency for the courts in judicial review cases to edge away from a strictly supervisory jurisdiction, becoming more willing in some cases to review the merits of the decisions themselves, instead of the way in which those decisions were made. However, this is generally not our experience of planning judicial reviews, and in a number of recent cases, the court has been expressly clear in identifying the limits of its jurisdiction.   

The tone of both the IRAL’s findings and the Government’s recommendations for reform is cautious and steers away from making any radical structural changes to the system for judicial review.  However, the IRAL does make two recommendations for immediate change in the substantive law, as well as some recommendations for changes in judicial review procedure, which are: 

• The introduction of suspended quashing orders as a discretionary remedy so that a decision can be quashed if certain conditions are not met within a specified time. This would give the courts increased flexibility in the remedies available and allow a more proportionate response in some cases of procedural error; 
• Legislating to reverse the Supreme Court’s decision in R (on the application of Cart) v The Upper Tribunal so that decisions of the Upper Tribunal refusing permission to appeal are not subject to the supervisory jurisdiction of the High Court. This recommendation will not impact on planning judicial reviews, being of more relevance to immigration cases;
• Procedural changes to be considered and taken forward by the Civil Procedure Rule Committee which include:

i). removing the requirement for a judicial review claim to be issued “promptly”, but retaining the 3-month time limit. This rule was found to create uncertainty and was rarely a successful ground for dismissal of claims. However, the current three month time limit for bringing claims is not proposed to be tightened, neither are any changes proposed to the six week limit for submission of claims to the Planning Court;

ii). providing further guidance on third party intervenors;

iii). providing for an extra step in the procedure of a Reply, to be filed within seven days of receipt of the Acknowledgement of Service.

Consideration of further reforms 

The Government is also considering further reforms that go beyond the IRAL panel’s recommendations. These include clarification of the effect of statutory ouster clauses (which are clauses in primary legislation intended to render a decision or use of a specific power non-justiciable, so that the courts cannot judicially review that decision or the use of that power) and further reforms to remedies, including the introduction of a prospective quashing order (so that a decision or secondary legislative provision could not be used in the future [as it would be quashed], but its past use would be deemed valid) and clarification of the principles which determine how the courts declare decisions null and void, and having never occurred (the principle of nullity). 

Comment 

Whilst some of the proposed reforms seem uncontroversial, for example the clarification of time limits and providing a reply to the Acknowledgement of Service, some of the other proposals, particularly those which were not part of the IRAL’s original remit, require careful consideration, particularly in the context of their implications for planning judicial reviews. 

The Government appears to be aligned with the IRAL Panel’s recommendations and heeding its warning that ‘the independence of our judiciary and the high reputation in which it is held internationally should cause the Government to think long and hard before seeking to curtail its powers in its rejection of radical reform, but the minor reforms proposed could still have implications that should be carefully considered. It is therefore important that a diverse range of views are represented in this further consultation.  

The report leaves open the scope for future changes to judicial review and argues that addressing particular issues as they arise would be more effective than legislating on broad principles on a complex area of law in one go. Therefore, this is unlikely to be the end of the story.