Law Society sets out priority areas for reform that would see less need for judicial review challenges

October 26, 2020

The Law Society has called for four reforms which it says would reduce the need for citizens to resort to judicial review, in its submission to the Independent Review of Administrative Law (IRAL).

These reforms are:

improvement in access to legal aid – “greater access to early legal advice would help improve evaluation of the merits of claims early on and encourage settlement”
strengthening the pre-court stage – “a significant proportion of judicial review cases are settled before the issue reaches the court, suggesting this is a useful process. Greater flexibility to extend time limits where appropriate would allow for more negotiation”
strengthening the duty to disclose information – “to guarantee full and timely disclosure of all relevant material held by public bodies. Delays in disclosure often lead to increased costs for both sides”
bringing back the right of appeal in immigration – “since this was pared back the number of immigration judicial reviews has gone up as other avenues of appealing Home Office decisions have been closed”.

The IRAL was set up in July this year and is chaired by former government minister Lord Faulks QC. The Law Society's response can be viewed here.

Chancery Lane maintained that an essential element of democracy requires that anyone who is affected by the decisions of public bodies is able to raise a challenge in the courts.

Law Society president David Greene said: “Judicial review allows ordinary people to ask an independent judge to decide whether a public body has acted lawfully or not. Anyone affected by a public body’s decision must be able to have the mechanism to challenge it.

“There is an imbalance of power between individuals and the state, which judicial review bridges – it must be effective and accessible to all.”

Greene added: “Judicial review doesn’t test politics, just lawfulness – it asks, has a public body used its powers in the way the law allows? The availability of this test drives good governance. It also enhances trust in state institutions and public decision-making, for individuals and for private businesses that have interests in the UK, where a strong adherence to the rule of law and the ability to defend business interests is important to attracting investment.”

The Law Society said its own survey suggested that judicial review cases were settled before court roughly half of the time (49%), rising to 90% in some areas such as immigration law.

It also pointed to independent research which it said showed nearly 80% of claims that were settled before court were in favour of the claimant,” indicating they were valid claims”.

Of the cases that proceed to a final hearing, 40% to 50% are decided for claimants and 50% to 60% for public authorities, the Law Society noted.

Greene said: “The people who most need judicial review are often the most vulnerable people in our society. That’s why we believe organisations should be able to bring legal challenges on behalf of those they represent or those that can’t afford it, and that judicial review should continue to be possible in the public interest.

“Judicial review has a vital place in the UK’s constitutional balance of powers between the executive – the government – parliament and the courts. It must continue to have the teeth to provide a check on the misuse of executive power, whichever the government of the day, and to ensure accountability of all public bodies.”

The Centre for Governance and Scrutiny has meanwhile argued in its response that the overall objective of the Review is "based on a misapprehension".