Faulks Review Of Administrative Law: Call For Evidence

In my 15 August 2020 blog post, Introducing The Planning Court Case Explorer, I referred to the independent review of administrative law chaired by Lord Faulks, that the Government has commissioned. The review has now published, quietly it must be said, a call for evidence on 7 September 2020, with a deadline for responses of noon on 19 October 2020 (to be emailed to IRAL@justice.gov.uk).

The examination question that the review has been given by the Government is this:

“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”

The review is politically charged. The Conservative party’s 2019 manifesto said this:

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”

Lord Faulks’ standpoint is well-documented.

I suspect their focus will be on the, inevitably politicised, constitutional law litigation that we saw last year. That is an issue which is above this blog’s pay grade, but as a planning lawyer I’m concerned that any reform to administrative law may be to the detriment of the role of the Planning Court in relation to disputes arising under our planning system. And as we begin to move to a new system, the Planning Court will have a crucial role in joining the dots given the inevitable uncertainties that will arise. We need that process to be fast, efficient and, above all, trusted. The oversight of the process by the courts is a vital element in ensuring that our system continues to comply with, for example, the requirements of the Aarhus Convention and of Article 6 of the European Convention on Human Rights (and if anyone suggests that these things don’t matter, just wait till their property is compulsorily acquired without justification, or a dodgy planning permission is issued without any proper remedy in the courts).

I just read again the House of Lords rulings in the Alconbury cases (9 May 2001), which concerned the question as to whether various aspects of the planning system as it was at that time met the requirements of the European Convention on Human Rights, at that point having recently been incorporated into UK law by way of the Human Rights Act 1998. The House of Lords concluded that the system complied with the Convention, but on the basis that an essential element of that system was the supervisory role of the courts in reviewing the lawfulness and rationality of administrative decisions taken in the process.

My nervousness as to where we may eventually end up is accentuated by the current furore over clause 45 of the United Kingdom Internal Market Bill, due to receive its second reading in the House of Commons on 15 September.

Imagine if the next Town and Country Planning Act rendered non-justiciable any regulations made under that Act? How convenient for a Government keen to proceed fast by way of secondary legislation and no doubt unhappy with the inevitable challenges it faces along the way (of which the Rights Community Action judicial review covered in last week’s blog post is a classic example).

Or if procedural failures in relation to decisions led to a rap over the knuckles for the authority rather than an undoing of what was done outside its powers?

Or if judicial review were codified in statute in such a way as to close out challenges to rationality or challenges on grounds such as bias, or legitimate expectation?

Of course, I hope that all of this is unlikely. I have some residual faith that there remains a basic understanding of the importance of the rule of law. I was pleased to see on Friday that the British Property Federation is canvassing its members in reaction to the call for evidence and I hope that other industry bodies do the same. After all, business needs predictability and to know that it is to be treated fairly – this is not just the domain of campaigners and communities!

If you have specific experiences of the role of judicial review in relation to the planning system, please do consider responding to that call for evidence.

As with any examination questions, do read the initial rubric first:

“The Independent Review of Administrative Law (IRAL) panel invites the submission of evidence on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally. The panel is particularly interested in any notable trends in judicial review over the last thirty to forty years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before, and whether it should be struck differently going forward.

The panel would like to hear from people who have direct experience in judicial review cases, including those who provide services to claimants and defendants involved in such cases, from professionals who practice in this area of law; as well as from observers of, and commentators on, the process. The panel are particularly interested in receiving evidence around any observed trends in judicial review, how judicial review works in practice and the impact and effectiveness of judicial rulings in resolving the issues raised by judicial review.”

So, what matters is direct experiences, evidence and data rather than rhetoric.

These are the specific areas which the review will be considering:

“• 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.

• 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.

• 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.

• 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.”

The call for evidence starts with a questionnaire for “Government Departments” (but which I would suggest is equally relevant for local authorities):

“1. In your experience, and making full allowance for the importance of maintaining the rule of law, do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions? If so, could you explain why, providing as much evidence as you can in support?

a. judicial review for mistake of law

b. judicial review for mistake of fact

c. judicial review for some kind of procedural impropriety (such as bias, a

failure to consult, or failure to give someone a hearing)

d. judicial review for disappointing someone’s legitimate expectations

e. judicial review for Wednesbury unreasonableness

f. judicial review on the ground that irrelevant considerations have been taken into account or that relevant considerations have not been taken into account

g. any other ground of judicial review

h. the remedies that are available when an application for judicial review is successful

i. rules on who may make an application for judicial review

j. rules on the time limits within which an application for judicial review must be made

k. the time it takes to mount defences to applications for judicial review

2. In relation to your decision making, does the prospect of being judicially reviewed improve your ability to make decisions? If it does not, does it result in compromises which reduce the effectiveness of decisions? How do the costs (actual or potential) of judicial review impact decisions?

3. Are there any other concerns about the impact of the law on judicial review on the functioning of government (both local and central) that are not covered in your answer to the previous question, and that you would like to bring to the Panel’s attention?”

No doubt the responses to these questions, from those inevitably on the receiving end of judicial review, will point to the delays and uncertainty caused by legal challenges, but of course that is only one side of the story, which is why it is so important that there are responses from a wide section of business and society to the main questions which I set out below:

“1. Are there any comments you would like to make, in response to the questions asked in the above questionnaire for government departments and other public bodies?

2. In light of the IRAL’s terms of reference, are there any improvements to the law on judicial review that you can suggest making that are not covered in your response to question (1)?

Section 2 – Codification and Clarity

3. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?

4. Is it clear what decisions/powers are subject to Judicial Review and which are not? Should certain decision not be subject to judicial review? If so, which?

5. Is the process of i) making a Judicial Review claim, ii) responding to a Judicial Review claim and/or iii) appealing a Judicial Review decision to the Court of Appeal/ Supreme Court clear?

Section 3 – Process and Procedure

6. Do you think the current Judicial Review procedure strikes the right balance between enabling time for a claimant to lodge a claim, and ensuring effective government and good administration without too many delays?

7. Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the Courts?

8. Are the costs of Judicial Review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?

9. Are remedies granted as a result of a successful judicial review too inflexible? If so, does this inflexibility have additional undesirable consequences? Would alternative remedies be beneficial?

10. What more can be done by the decision maker or the claimant to minimise the need to proceed with judicial review?

11. Do you have any experience of settlement prior to trial? Do you have experience of settlement ‘at the door of court’? If so, how often does this occur? If this happens often, why do you think this is so?

12. Do you think that there should be more of a role for Alternative Dispute Resolution (ADR) in Judicial Review proceedings? If so, what type of ADR would be best to be used?

13. Do you have experience of litigation where issues of standing have arisen? If so, do you think the rules of public interest standing are treated too leniently by the courts?”

We have arranged a joint Town Legal/Landmark Chambers webinar at 5.30 pm on 14 October 2020 to consider these questions in the specific context of the planning system, and the operation of the Planning Court. Event and registration details here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

Whether you come from the standpoint of a developer, local authority or community representative, when you strip away the legalism (as we will try to do) all of this really does matter in practice – not just in relation to the small minority of matters that end up in the Planning Court, but in relation to the operation of the system as a whole: fair and predictable procedures are only possible if we know that there are rules, and that remedies are available if they are broken. And when challenges are brought, they need to be resolved with speed, fairness and efficiency.

Simon Ricketts, 12 September 2020

Personal views, et cetera

PS two other webinars for your diary:

5.30 pm 15 September 2020

Permission In Principle – In Practice

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_5S0GAe6ySN2zfvsdtjd0uQ

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

The Great Hall, Royal Courts of Justice (courtesy Wikipedia)