Meet the experts who will consider reforming judicial review

Jordan Briggs, Oxford law graduate, introduces the independent body tasked with reviewing possible reforms

On July 31, 2020, the Department of Justice (MoJ) announced that an expert group would review administrative law and examine whether reform of the judicial review process was necessary.

The first part of this article explains the objectives and the political background of this administrative law review. The second contains details of the six people who make up the panel.

1. Review of administrative law: objectives and political background

The MoJ Press release notes that the review "meets a manifest obligation to ensure that the judicial review process is not open to abuse and delay". The corresponding “obligation” can be found on page 48 of the 2019 Conservative Party manifesto. "After Brexit," the passage said, a conservative government "would consider the broader aspects of our constitution: the relationship between government, parliament, and the courts," including "how royal privilege works" and "access to justice for" ordinary people People ". A few lines later, a commitment is made to "update the Human Rights and Administrative Laws" and "ensure that judicial review is possible to protect the rights of individuals from an arrogant state while ensuring that it is not misused for behavior Create policies in other ways or create unnecessary delays ”.

For this reason, the MoJ has legitimized the body, legitimized by these manifesto promises, to examine "whether the right balance between the right of citizens to contest executive decisions and the need for effective and efficient government is being established". Four specific problems are addressed:

1. "Whether the terms of the judicial review should be written in law."
2nd "Whether certain executive decisions should be made by judges."
3rd "What grounds and remedies should be available in claims against the government?"
4th "All other procedural reforms for judicial review, such as timing and appeal procedures."

We are now moving to the people who will take these matters into account.

2. Panel members

The backgrounds and areas of expertise of the panel members are very different. For the sake of brevity, we concentrate on the experiences and publications of members in administrative law, insofar as they are available.

Lord Edward Faulks QC – Panel chair

Lord Faulks QC is a lawyer at 1 Chancery Lane who took silk in 1996. According to his chamber profile, Lord Faulks' areas of activity include medical law, personal injury, police law, professional liability, the public sector and human rights. From 2005 to 2006, Lord Faulks QC was a special adviser to the department for constitutional issues in the area of ​​compensation culture. Between January 2014 and July 2016, he was minister in the MoJ under Chris Grayling.

Lord Faulks QC wrote publicly about administrative law. Two articles are of particular interest. The first, entitled “The Supreme Court's Prorogation Judgment, has upset our constitution. MPs should make a correction, ”was published by on February 7, 2020. Lord Faulks QC criticized the Supreme Court for making a statement against the government in Miller (No. 2)and wrote that "the decision to pro-parliament, however questionable it was, was to exercise a clear supremacy, the merits of which are the stuff of politics, not law." Lord Faulk's QC called on parliamentary intervention "to significantly regulate the unjustification of the prerogative power … and possibly further limit the scope of this power". Such legislation is "possibly the only way to limit the intrusion of the courts into the political field".

The second article, entitled "The ability to repeal the Human Rights Act, leave the ECHR and bring justice home, could not come back" released on April 26, 2017 from the same website. Lord Faulk's QC wrote that after working with the Human Rights Law, he "was never convinced that it contributed significantly to the protection of human rights" and that he "could not understand why human rights could not be perfectly protected by the ( domestic) customary law ”. Problems with the Human Rights Act included "these extreme difficulties in getting rid of terrorists". Lord Faulk's QC believes that these issues could be resolved either by introducing a British Bill of Rights or by repealing the Human Rights Act and leaving the Council of Europe. However, the "bolder and cleaner option" would be "to leave the Council of Europe as a whole, repeal the Human Rights Act and allow our own courts and Parliament to protect human rights".

Dinah Rose QC, Addressing this appointment on Twitter, explained that while "Lord Faulk's QC is a polite and intelligent man," comments such as those above illustrate that "(h) he has already chosen the topic to be examined by the" independent "administrative law review should he is chair ”.

Professor Carol Harlow QC

Professor Harlow is emeritus professor of law at the London School of Economics, where she has been teaching since 1978. Professor Harlow was appointed honorary QC in 1996, enrolled at the British Academy in 1999 and appointed Middle Temple Bencher in 2009, and has written extensively on administrative law and European Union law (including in particular procedural changes, automation, executive accountability and pluralism).

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While it would be reducing to sum up the tone of these works in a single stroke, attention could be drawn to an article entitled "Public Law and Public Justice" published in 2002 by the Modern Law Review. Professor Harlow criticized the campaign groups' involvement in litigation and warned of the politicization of the judicial process. The involvement of campaign groups, the argument goes, could undermine the security, finality, and independence qualities for which the legal system is valued, thereby undesirably undermining its legitimacy. Professor Harlow's conclusion was that the vast majority of campaign groups should not be permitted to apply for judicial review.

Vikram Sachdeva QC

Vikram Sachdeva QC is a lawyer at 39 Essex Chambers who took silk in 2015. He taught administrative and constitutional law at the University of Cambridge and was appointed chair of the Bar Association for Constitutional and Administrative Law in September 2019.

Sachdeva has appeared in a variety of legal and human rights cases with considerable experience before the Supreme Court and the Court of Appeals. He specializes in medical law, media law and disputes related to student loans (as well as non-public law issues such as commercial and tax law). in the NHS Trust vs. Y.For example, the question arose as to whether Article 2 of the European Convention on Human Rights was violated by the fact that doctors did not seek permission from a court before depriving clinically assisted nutrition and hydration to a patient with prolonged loss of consciousness. R (Tigere) v Secretary of State for Economic Affairs, Immigration and Skills concerned about refusing Articles 2 and 14 (same Convention) to deny the applicant a student loan.

Sachdeva is clearly familiar with the protection that judicial review and the Human Rights Act offer to vulnerable applicants.

Professor Alan Page

Professor Page has been a professor of public law at Dundee University since 1985. He teaches constitutional, administrative and EU law at bachelor level and supervises doctoral students in constitutional work. Professor Page has been a consultant many times. He has been a consultant to the Scotland Bill Committee of the Scottish Parliament, the European and External Relations Committee and the European Bureau for Democratic Institutions and Human Rights.

Professor Page has written extensively about the Scottish constitution and how important it is to focus precisely on how the government works when studying public law. In his 1999 book entitled "The Executive in the Constitution: Structure, Autonomy and Internal Control" described the inner workings of the executive in Scotland from public service to institutions as well as the allocation and monitoring of public finances. Professor Page argued that the internal machinations of the executive (i.e., coordination and control itself) are as important in the constitutional order as their democratic and legal accountability.

Celina Colquhoun

Celina Colquhoun is a lawyer with 39 Essex Chambers. Her areas of expertise, as listed in her chamber profile, include "all aspects of planning and environmental law" and "licensing methods". The same source says that Colquhoun "appears regularly as a lawyer before the higher courts … in public law cases," which is confirmed by the list of cases in which she occurred. These focus on infrastructure, development certificates, housing and environmental law. Colquhoun's book entitled "A Practical Guide to Community Infrastructure Levy" will be published in October 2020.

Nick McBride

Nick McBride is a Fellow at Pembroke College, Cambridge. He was formerly a member of All Souls College in Oxford. He has written extensively on legal philosophy and the law of obligations (mostly from tort) and has created guides to help new law students get used to the subject.

An example of McBride's fusion of philosophy and positive law can be found in his book published in 2018 entitled "The Humanity of Private Law". It argues that the law of obligations deals with the flourishing of its subjects and not radically with maximizing prosperity or maintaining interdependency relationships.

3. Conclusion

These are the members of the panel who will consider the need to reform the judicial review process. Lord Falconer, the Labor Peer and Shadow Attorney General, said on Twitter that the prime minister expected the committee to respond within five months.

Jordan Briggs studied law at the University of Oxford. He plans to start an LLM at the LSE in September. Jordan is an aspiring lawyer.

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