Opinions and Legal Insights

Lee Marsons, Maurice Sunkin and Theodore Konstadinides: The UK Administrative Justice Institute’s submission to the Independent Review of Administrative Law

On 20 October, the UK Administrative Justice Institute (UKAJI) made available on its website its submission to the Independent Review of Administrative Law (IRAL), drafted by Lee Marsons, Maurice Sunkin, and Theodore Konstadinides of the University of Essex. This blog provides an overview of that submission and follows our original UKCLA post setting out our initial thoughts and concerns about the IRAL.

UKAJI has focused on issues related to administrative justice and the implications of limiting access to judicial review for the wider system of administrative and statutory redress. We also commented on the wider constitutional issues omitted in IRAL’s terms of reference and call for evidence.

The landscape of administrative justice

The IRAL is expressly framed as a review of administrative law. However, all of its materials – including the announcement of its establishment, its terms of reference, and its call for evidence – refer only to judicial review. This is problematic because while judicial review is an important facet of administrative law, it does not make up administrative law by itself. Public bodies make tens of millions – possibly even hundreds of millions – of decisions each year and only a tiny fraction of these are challenged by way of judicial review.

Ordinarily, if there is a dispute concerning a decision, that will be resolved within the public body via mandatory reconsideration or administrative review, which is to say that a separate decision-maker within the same public body will reassess the decision for its correctness. If an individual still disputes the decision after internal reconsideration, they may be able to pursue a statutory appeal to an independent tribunal.

The Department for Work and Pensions, for instance, takes around twelve million social security decisions each year. The number of these decisions subject to mandatory reconsideration has increased. Indeed, between 2013 and 2020, there have been 1.6 million mandatory reconsiderations for just one form of benefit: Personal Independence Payment (PIP). Moreover, about 160,000 of these decisions are appealed to a tribunal each year. Only a small fraction of these will be subject to a judicial review each year. In the grand scheme of administrative law, judicial review is a fringe activity that does not represent the dominant – or even one of the dominant – ways that public disputes are resolved.

As a topical example, judicial review has been a modest, even non-existent, remedy in the context of the Windrush debacle. Instead, these disputes have largely been dealt with administratively via the Windrush Compensation Scheme, though a single Windrush complaint was decided on 20 October 2020 by the Parliamentary and Health Service Ombudsman.

Given the existence of this wider administrative law and administrative justice landscape, UKAJI makes two recommendations on this theme:

The IRAL should have located judicial review within the wider administrative justice landscape by asking respondents to consider whether the current relationship between judicial review and alternative forms of redress – including statutory appeals and administrative review – is appropriate and, if not, why not.

The IRAL must be alive to the unintended consequences of limiting access to judicial review for the wider administrative justice landscape. Limiting access to judicial review does not make disputes vanish – it merely shifts them elsewhere in the system. This may place greater pressure on existing means of public dispute resolution or require that additional means of resolution are created.

Getting it right first time

If there is a political desire to reduce the number of judicial reviews even further, the causes of the demand for most judicial reviews must be dealt with. Given that the vast majority of judicial reviews in the Administrative Court relate to the application of pre-existing law and policy to the facts of an individual case, most disputes do not relate to challenging general policies or to making wider socio-political points. Most claimants are simply concerned with the resolution of their own case on its own facts through the proper application of pre-existing law and policy.

Consequently, to reduce the demand for judicial review there needs to be a renewed focus on ‘getting it right first time’ and improving the quality and accuracy of initial decision-making. In the context of social security decisions, for example, tribunals overturn well over 50% and sometimes up to 75% of initial decisions which are appealed. This suggests that all is not well in the realm of initial decision-making. As the Social Security Advisory Committee has put it, initial decision-makers often feel that they are poorly trained for their tasks, have inadequate knowledge of relevant law and policy, operate within inadequate time restraints, and are not adequately supported by management to perform to the best standards.

There are similar concerns in relation to the quality of administrative review within public bodies. The Independent Chief Inspector of Borders and Immigration, for example, has several times had cause to criticise the quality of administrative review in the Home Office, particularly on the basis that reviewers are reluctant to question and second-guess their colleagues’ negative value judgements of claimants’ credibility.

Rather than adumbrate any specific reform proposals of our own, UKAJI preferred to highlight to the IRAL that well-evidenced reform recommendations already existed on these issues, including an ESRC study by Thomas and Tomlinson which made a series of recommendations in relation to initial decision-making, administrative review, and statutory appeals.

However, UKAJI made three recommendations on this theme:

Rather than exclusively focus on the law related to judicial review, the IRAL should further consider how poor-quality initial decision-making and inadequate administrative redress generates the demand for judicial review.

IRAL should also consider how initial decision-making and administrative redress can be improved. If there is a political desire to minimise judicial review further, ‘getting it right first time’ is the obvious focus as this is what generates the demand for most judicial reviews.

The IRAL should consider how government departments and public administration more widely can best learn from experience of judicial review and incorporate this learning into decision-making in order to further good government.

Parliamentary sovereignty

As we highlighted in our previous UKCLA blog, we are concerned by the omission of any reference to Parliament in IRAL’s terms of reference or call for evidence. Indeed, IRAL’s exercise asks whether judicial review provides an appropriate balance between individual redress through the courts for unlawful executive conduct on the one hand and the efficiency of the executive on the other. IRAL locates judicial review within a struggle between the executive, individuals, and judges. This whitewashes Parliament from the analytical landscape.

This is important because, in the British constitutional order, Parliament is sovereign and the executive is the junior constitutional partner. The executive is obliged to obey the law and may not violate its legal obligations even if this would improve its efficiency and accomplish all of its policy objects. Additionally, as Lord Reed said at [68] in UNISON v Lord Chancellor, parliamentary sovereignty constitutes a core justification for protecting the rights of individuals to access judicial review and the courts generally.

These matters are especially important in the current political context where the executive is pursuing a number of Bills which have the potential to undermine the executive’s need to obey the  law and its accountability to the courts, including the Internal Market Bill, the Overseas Operations (Service Personnel and Veterans) Bill, and the Covert Human Intelligence Sources (Criminal Conduct) Bill. Substantially limiting access to judicial review could be another step further in this trend, which the IRAL should be alive to. Therefore:

UKAJI considers that the framing of the questionnaire and the review more generally in terms of the need to balance the interests of individuals in challenging the executive against the role of the executive in carrying out the business of government is problematic. It obscures additional crucial facets of judicial review, particularly its roles in supporting the sovereignty of Parliament and ensuring that the executive acts in accordance with the law. This is an especially concerning omission in light of Bills currently being pursued by the executive which have the potential to undermine its obedience to the rule of law.

Human rights and Brexit

UKAJI is further concerned about the lack of any reference to human rights generally and the Human Rights Act 1998 (HRA) in particular in IRAL’s terms of reference and call for evidence. This is another indication that IRAL may disregard the wider context in which judicial review operates. Indeed, the Government has announced a separate review of the HRA.

Human rights are now central to judicial review and cannot be divorced from it. Grounds of review such as rationality, for instance, have been modified in light of human rights standards to become more rights-protective, as have principles of statutory construction (see UNISON v Lord Chancellor). Moreover, because of the duty on public bodies to act compatibly with human rights in s.6, the HRA has made justiciable some issues that would otherwise be non-justiciable (see [29] in Lord Carlile v Home Secretary). Therefore, an attempt to review the HRA separately from judicial review would be an artificial exercise given that human rights issues can be at the core of judicial review.

The place of the European Court of Human Rights must also be considered. Should grounds of review such as proportionality and rationality be substantially weakened to become less rights-protective, there is the risk that the Government may win more cases domestically only to lose those same cases in Strasbourg, with all the associated costs, resource, and time implications. There is also the risk that reform of the grounds of review would detrimentally impact the dialogue that has been fostered between Strasbourg and the Supreme Court: see R v Horncastle.

UKAJI also argues that IRAL should consider the consequences of Brexit for human rights. In particular, post the implementation period, the Charter of Fundamental Rights will no longer be enforceable in British courts. Consequently, domestic judges will no longer be able to disapply legislation that contradicts Charter rights. Claimants will have to rely on a declaration of incompatibility under s.4 of the HRA.

Moreover, although the rights set out in the Charter will not be directly enforceable, they may be included in retained EU law or in general principles of EU law retained under s.6 of the European Union (Withdrawal) Act 2018. The general principles include rights such as non-discrimination. However, not all the rights in the Charter have been recognised as general principles, so s.6 is no guarantee of their protection. Additionally, neither retained EU law nor the general principles will enjoy precedence over contravening national law and can be amended or repealed by Parliament.

These matters may also increase the importance of the HRA in domestic judicial review proceedings because cases that might previously have been pursued by way of specific Charter rights such as data protection, may now be pursued using more general HRA rights, such as Article 8 ECHR.

UKAJI is concerned that the IRAL should not ignore this politico-legal context. To do so could further weaken human rights protection on top of constitutional changes produced by Brexit and ignore the wider legal implications of judicial review reform.

For these reasons, UKAJI recommend that:

IRAL should take account of human rights and the Human Rights Act 1998 even though they are not expressly within its terms of reference. Failure to do so would be a sizeable lacuna in the consideration of issues such as justiciability, the grounds of review, and principles of statutory construction.

The learning done by IRAL on human rights should become a point of reference for, and feed into the work to be undertaken by, the upcoming review of the Human Rights Act 1998 so that important reflections can be shared.

UKAJI is of the view that IRAL’s questionnaire should have included specific questions about the role that human rights and the Human Rights Act 1998 are perceived to play in judicial review by public bodies. Similar questions directed to claimant lawyers would also have been useful, particularly asking whether they believe that human rights offer protections that other grounds and redress mechanisms do not.

Alternative dispute resolution and time limits

There is consistent evidence that the three month time limit compels claimants to lodge applications that could be resolved out of court.

UKAJI believe that the potential value of ADR mechanisms in judicial review proceedings should now be more fully explored. At this stage, UKAJI expresses no definite view on what forms of ADR might operate best in judicial review proceedings and prefers that different options be explored so that an evidence-based assessment of what works can be made.

This is not to imply a rose-tinted perspective of ADR, which may be inappropriate in some public law disputes. There is legitimate concern, for instance, about how successful negotiation or mediation can be with the power imbalance between, say, central government and the individual, and one must recognise that it is not possible to mediate or negotiate about whether a public body has a legal power or not. That is a matter of law for the court and not agreement between the parties. In addition, ADR has the disadvantage of not establishing precedents for individuals outside of the immediate dispute.

For these reasons, UKAJI notes that:

The current limitation period for lodging judicial review proceedings may inhibit the ability of the parties to resolve disputes without legal proceedings and encourage claimants to lodge claims that could be resolved without involvement of the court, with consequential costs.

It is time to explore the option of ADR more fully in practice in the context of judicial review proceedings, albeit with recognition of its limitations. This might include reform to the absolute statutory time limit for lodging claims of three months

Constitutional moments and judicial review

Finally but importantly, UKAJI notes that, in any event, this is not a time when the panel should expect a reduction in the amount of constitutional litigation. By virtue of the European Union (Withdrawal) Act 2018, Ministers have significant powers to issue statutory instruments capable of amending or repealing primary legislation. These powers have been used to issue 622 statutory instruments and each of these instruments is in principle subject to judicial review. In addition, by virtue of the Internal Market Bill and its hotly contested provisions to render certain statutory instruments produced under the Bill immune from judicial review, the judiciary may  soon find itself considering the consequences of the dicta in Privacy International v Investigatory Powers Tribunal on how to interpret ouster clauses compatibly with the rule of law. Along with the coronavirus pandemic, we are living through a time of ‘constitutional moments’ and constitutional litigation may simply reflect that reality. This is not a time to expect silence on the judicial front.

Lee Marsons, Maurice Sunkin and Theodore Konstadinides, University of Essex

(Suggested citation: L. Marsons, M. Sunkin and T. Konstadinides, ‘The UK Administrative Justice Institute’s submission to the Independent Review of Administrative Law’, U.K. Const. L. Blog (26th Oct. 2020) (available at https://ukconstitutionallaw.org/))