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Judicial review consultation

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The government has published a summary of submissions made by various government departments to the ‘Independent Review of Administrative Law’ which considered reform of judicial review, looking at codification, non-justiciability, the grounds of review and remedies, and procedure.

On codification of judicial review, submissions noted that putting the process into legislation could lead to further complication rather than clarification of the process.

One key point highlighted around justiciability is the government view that certain matters, particularly those involving decisions on international relations, such as treaty-making powers, should rest with the executive and fall outside the remit of the courts. It is worth noting that in its unanimous decision in Miller 2 ([2019] UKSC 41), the Supreme Court found that it is the responsibility of the courts to uphold the values and principles of the UK’s constitution and to ‘determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context’.

The report discusses the principle of ‘standing’, with submissions arguing that claims should not be allowed where there is a potential public interest that is not personally relied on by the claimants, noting the Wightman application which confirmed that the UK could unilaterally decide to withdraw its article 50 notification to trigger the Brexit process ‘despite there being no political possibility of that notice being withdrawn’ (although that decision was a matter for the CJEU following a reference to it by the Court of Session).

Issue: 1527
Categories: News