The Ministry of Justice (MoJ) has launched a consultation on proposals to reform the law on judicial review. The proposals go beyond those made by the Independent Review of Administrative Law (IRAL), which the government established last year.

The IRAL was chaired by the former justice minister, Lord Faulks QC, and was tasked with examining ‘the need for potential reforms of judicial review’. In its report, published in March 2021, the IRAL discussed the political controversies around judicial review that have arisen under different governments, observing that it was ‘a small part of a debate that has smouldered, and sometimes burst into flames, over many years’ (para 21, page 11). The IRAL recommended two immediate reforms, the ending of what are referred to as ‘Cart judicial reviews’ (para 3.46, pages 69–70), which currently allow appeals to the Upper Tribunal to be subject to judicial review, and giving the courts the power to suspend quashing orders (para 3.49, page 70).

Jo Hickman, director of the Public Law Project, described the IRAL’s recommendations as ‘relatively modest’ but warned that there was ‘a contrast between the substance of the panel’s report and the tone struck by government’. She said that on the evidence, with which the IRAL appears to agree, the right balance has been struck between the courts, government institutions and parliament, but it is ‘of concern that the government continues to suggest differently’.

The chair of the Bar Council, Derek Sweeting QC, described a citizen’s right to challenge local and national government decisions through the use of judicial review as ‘a national asset’. He argued that while ‘there is always room for sensible adjustments and reform, the number of judicial reviews in all areas (including immigration) has been falling over recent years’.

Among the government’s additional proposals is the reform of ‘ouster clauses’. These restrict the powers of the courts to intervene in government decisions and their extension could be used to curb judicial review as a remedy open to the public (see para 89 of the consultation document). The former president of The Law Society, David Greene, said: ‘We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government is, and must remain, answerable to the law – just like the rest of us.’

The consultation on the proposals closes on 29 April 2021.