Queen’s Speech 2021 – Judicial review reform

The UK Government appears intent on reforming judicial review (the means by which the High Court, pursuant to its supervisory jurisdiction, exercises control over administrative action). To this end, the Government has, further to a review of administrative law and a consultation on the review’s findings, indicated that it will bring forward a “Judicial Review Bill” during the forthcoming parliamentary session. In this article, we consider the bill and its history.

Independent Review of Administrative Law

The present administration was elected in 2019 on a manifesto commitment to:

“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.”

Further to this manifesto commitment, the Government, in July 2020, asked several experts, chaired by Lord Faulks QC, to consider administrative law and suggest reforms for further consideration. The Independent Review of Administrative Law (IRAL) published its report on 18 March 2021. In March 2021, the Government began a consultation process in respect of the IRAL’s report. In the consultation paper, the Government addressed the recommendations of the IRAL and made a series of additional suggestions in relation to potential judicial review reform. That consultation closed on 29 April 2021 and you can see the DLA Piper public law team’s response here.

The IRAL did not recommend any major overhaul of the current judicial review system. However, the IRAL did make two main recommendations. In summary, the IRAL recommended reversing, by way of legislation, the so-called Cart judgment and, again through legislation, providing the Court with a power to give suspended quashing orders to allow time for the correction of administrative errors which have been found wanting in judicial review proceedings.

The Government response to IRAL

As noted, the Government’s response to the IRAL goes beyond the panel’s recommendations by proposing further reform options. We shared our views (and concerns) about some of these proposals in our consultation response. Amongst other matters, we noted the following:

1. Judicial review is an important protection for individual rights and that, therefore, economic considerations and administrative inconvenience do not justify the impact that prospective-only remedies would have on individual rights.


2. The Government’s proposals on ouster clauses were unnecessary as Parliament already has the ability to oust the supervisory jurisdiction of the Court in appropriate cases. Accordingly, ouster clauses can be given effect through clear and unambiguous drafting by Parliament.


3. Whilst the operation of the promptitude requirement could benefit from reform, a blanket removal of the requirement would be inappropriate as some judicial review challenges can and should be brought promptly as a delay would be contrary to the public interest.


4. We did not consider that a track system for judicial review would be appropriate.


5. We suggested that a duty could be implemented to identify organisations or wider groups who might assist in proceedings.


6. Finally, we suggested that an additional area which would benefit from clarification is the availability of judicial review costs capping orders.

To see our full response, you can use the following link.

The Queen’s Speech 2021

Notwithstanding that the consultation has only recently concluded, the Government appears to be intent on pressing ahead with reform. This is reflected in the Queen’s Speech 2021 (which was delivered by HM The Queen on 11 May 2021). Through the Sovereign, the Queen’s Speech provides the primary way for the UK Government to outline its priorities and programme of legislation for the forthcoming parliamentary session. (Note that you can read our summary of the Queen’s Speech here).

Amongst the proposed bills included in the Queen’s Speech, the Government is intending on bringing forward a Judicial Review Bill to:

“Introduce reforms to Judicial Review to protect the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose – which is to hold the Government and public authorities to account, apply the intent of Parliament, and protect individuals’ rights”.

As yet, it is not clear precisely what this Bill will entail. It is not yet published and, as noted, the Government’s consultation following the IRAL report has only just concluded.

To some extent, judicial review practitioners (and affected by judicial review litigation) will therefore have to wait and see what exactly the Government is proposing to do. However, the mood music is clear. The Government seems determined to limit the scope of the Court in checking administrative action. We will publish a further article when the Bill is eventually published.