Judicial review regime “fit for purpose” says LLG in submission to independent review

LLG broadly considers the current judicial review regime as fit for purpose, the membership group has said in its response to a call for evidence from the Independent Review of Administrative Law (IRAL).

The group said it supported the need for sustained accountability, transparency, and openness.

“Our membership are the arbiters of good governance. We consider strongly that there is a positive case for the ongoing scrutiny of public decision making and, as such, we broadly consider that the current judicial review regime is fit for purpose.

“It enables effective advice to be given within local government to engender robust and lawful decision making, whilst protecting access to justice. The system remains of profound importance in ensuring that the judiciary is separate from the executive within the constitution.”

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LLG added that, with that in mind, it would expect to see further consultation incorporating a high level of detail on any proposals for change before significant alterations are made to the process.

In answer to specific questions set out by IRAL, the LLG response said that the availability of judicial review ensured that local authorities act and use their powers upon receipt of legal advice. “It provides a focus on communities to ensure accountability, effective consultation and equalities impacts. It is an important safeguard and provides fundamental access to justice. In that sense, the process improves decision making, transparency and accountability.”

The response also suggested that on balance, any perceived ‘inconvenience’ or ‘irritation’ some judicial reviews might be perceived to create was “wholly outweighed by the rule of law, access to justice and accountability. It remains at the very core of our democracy that decision makers can be held to account by the public which they serve.”

In relation to potential improvements to the law on judicial review, LLG said:

  • Creating a clear, stand-alone ground of judicial review for breach of the equal treatment principle.
  • Defining the extent and scope of the duty on public bodies to give reasons.
  • Extending proportionality review to other cases.
  • Allowing parties to agree an extension to the three-month time limit for submitting claims, to allow proper pre-action engagement in every case.

LLG’s response also warned that codification was unlikely to assist in bringing benefits to the process and should, if proceeded upon, limit itself to administrative procedure. “It would be challenging in the extreme to attempt to codify all possible grounds for review and LLG would not wish to see it being used to remove existing grounds or to curtail them.”

The group nevertheless said that it did consider that there might be two areas which might benefit from review: that relating to homelessness and social care decision making.

On the former, LLG suggested that “there might be an argument for extending the scope of the statutory appeal procedure to include homelessness decisions not already within its scope to avoid the use of judicial review”.

A similar observation with respect to judicial scrutiny of social care decision making arose, LLG argued. “Challenges are often focused on the complex and iterative process of assessment that rely on a wide range of complaints (irrationality, procedural impropriety, illegality, unfairness and so on). The applications are then subject to varying and unpredictable levels of judicial scrutiny.

“It follows that it is often difficult to confidently assess the merits of many of these cases. It is recognised amongst practitioners that the outcome in many of these cases can vary substantially.”

LLG said this was undesirable from the point of view of legal certainty and was a strong disincentive to defend challenges to decisions that were not obviously wrong or unfair.

“Looking at matters in the round, we do question whether any of these disputes are best managed within the framework of the Administrational Court, not least because these are almost always arguments about what services are required rather than the formal considerations. For that reason, some form of codification for this type of specific case be desirable (albeit difficult to achieve….),” the response said.

LLG meanwhile said it considered the judicial review process to be clear and that the courts struck the right balance between progressing arguable cases and disposing of frivolous ones. “We do not consider reform of the process is necessary following the governments previous reforms around ‘totally without merit’ cases and fees for oral renewals.”

It warned that shortening time limits would make it more difficult for local government to engage properly with legitimate concerns, making it less likely that ADR could be carried out pre-action, increasing the number of protective claims. It could also affect access to justice, LLG said.

It added that there was merit in continuing the usual practice of defendants bearing their own costs of defending a successful rebuttal at the permission stage. “Transferring the burden to citizens would reduce access to justice and impact their ability to hold the government (both national and local) to account. Further, judgements at permission stage can prove useful in providing a commentary on the legality of actions and decisions. Oral hearings tend to award costs to successful defendants in any event.”

The closing date for submissions to the IRAL, which is being led by Lord Faulks QC, was last Monday (26 October). The panel is expected to produce a report by the end of the year.

See also:

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

Judicial review “necessary for effective and consistent decision-making”: Centre for Governance and Scrutiny

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