Government announces independent review of judicial review
The government announced at the end of July that it intended to carry out an independent review of judicial review - with the terms set out here. It is clear that one of the aims of the review is to consider whether or not judicial review is or has encroached too far into the work of the executive branch of the government.
The Law Society Gazette questions whether the two recent cases of Miller (No. 1)  UKSC 5 and Miller (No.2)  UKSC 41 are the kind of case the Government is targeting with this review.
The review will consider the following questions:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.
2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.
Posted on 11 September, 2020 by Ortolan