The Government’s Independent Review of the Human Rights Act Contents

7Administrative Law

Inter-relationship between IHRAR and IRAL

182.The launch of the IHRAR came just over four months after the government’s separate Independent Review of Administrative Law (IRAL) was established. The IRAL moved swiftly and published its report into judicial review in March 2021.158 The two reviews, while separate, are interrelated;159 both forming part of the government’s realisation of the 2019 Conservative party manifesto commitment to “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”.

183.The two reviews are also interrelated substantively, as judicial review is the key method by which the acts and decisions of public authorities, including government, can be challenged on human rights grounds under the HRA.160 Any reform affecting judicial review will be likely to have an effect on human rights claimants. In particular, if access to, or the impact of, judicial review is restricted so as to undermine the ability of victims to enforce their human rights and secure an effective remedy, then the UK will additionally be in breach of its obligation to provide an effective remedy under Article 13 ECHR.

184.However, the IRAL report ultimately recommended very limited changes to the current system of judicial review. The substantive changes were (a) removing from the scope of judicial review decisions of the Upper Tribunal to refuse permission to appeal; and (b) granting judges in judicial review claims the power to make suspended quashing orders. The current intention of Government is to include both of these proposals in the forthcoming Judicial Review Bill. While we have not yet scrutinised these proposals, the first of them would not appear to undermine human rights protections. In respect of the second, the availability of a suspended quashing order would allow the courts to suspend, for a specified time, the effect of an order quashing a decision or action or statutory instrument. This would give the Defendant public authority an opportunity to rectify the errors identified, with the quashing order coming into effect if the errors were not remedied within the timeframe.

185.While suspended quashing orders in judicial review applications may well provide more flexibility in the remedies available, in applications concerning human rights they must not be used in such a way as to deny an effective remedy. We intend to take evidence on these proposals and report in due course.

Government consultation on Judicial Review Reform

186.Despite the limited recommendations of the IRAL, the Government subsequently launched a six-week consultation on further potential changes to judicial review that would have a significant impact on access to justice, the rule of law and the balance of power between the courts and the other branches of government.

Ouster clauses

187.Ouster clauses are clauses in primary legislation which seek to preclude the court’s jurisdiction on specific issues, placing certain powers and decisions beyond the reach of judicial review. One of the additional proposals for reform put forward in the Government’s consultation was “legislating to clarify the effect of statutory ouster clauses”, on the basis of a “core principle … that ouster clauses legislated for by Parliament should not be rendered as of no effect”.161

188.This reflects the fact, acknowledged in the consultation, that the courts have tended not to give effect to ouster clauses which purport to oust their jurisdiction entirely. Instead they have found that decisions based on errors of law are still capable of being reviewed, on the basis that they involve the exercise of powers that Parliament did not intend to give to the decision maker.162

189.The consultation notes that IRAL made no such recommendation on ouster clauses, but explains the Government’s position that the doctrine followed by the courts is

“… detrimental to the effective conduct of public affairs as it makes the law as set out by Parliament far less predictable, especially when the courts have not been reluctant to use some stretching logic and hypothetical scenarios to reduce or eliminate the effect of ouster clauses … .The danger of an approach to interpreting clauses in a way that does not respect Parliamentary sovereignty is, we believe, a real one.”163

190.Whilst it acknowledges that it is not unreasonable to presume that Parliament would not usually intend a body to operate with “unlimited restriction, and with no regards to any form of accountability”, the paper concludes that further clarity is needed as to how the courts should interpret ouster clauses.164

191.The Government further claims that ouster clauses are not a way of avoiding scrutiny, but rather “are a reassertion of Parliamentary Sovereignty, acting as a tool for Parliament to determine areas which are better for political rather than legal accountability”.165

192.We are concerned at the implication that the use of ouster clauses might become more widespread in areas where “conciliatory political means” are considered to be a more appropriate form of accountability. Legal accountability is crucial when dealing with human rights violations as political accountability will not always be sufficient.

193.In evidence to IHRAR, Policy Exchange’s Judicial Power Project (JPP) suggested that Parliament could enact an ouster clause specifying that no court would have authority to question a designated derogation order. This would be “highly controversial”, it was acknowledged, but they argued that it would be consistent with the role that Government plays in deciding on derogations from the ECHR.166 However, we note that in a constitutional system that respects the rule of law, whilst derogation decisions are indeed for the Government to make, citizens should be protected from unlawful decisions by Government that breach their human rights. This protection is provided by the ability of the Courts to hear challenges to such unlawful decisions and to provide appropriate and effective remedies where people’s human rights are violated as a result. We discuss this in further detail in the next chapter.

Prospective-only remedies

194.The Government consultation also proposes ‘prospective-only remedies’. This is essentially a proposal that in certain circumstances the courts would either have the option, or even be required, to make quashing orders that only affect statutory instruments for future purposes. Instead of being found to have been unlawful from the point at which it was first made, the SI would instead be treated as having been lawful until the order was made. Claimants who had already suffered as a result of the statutory instruments found to be unlawful would not receive any remedy, other than, as Joshua Rozenberg QC described it to us, “the warm feeling that they had persuaded the Government to change the law”.167

195.Joshua Rozenberg QC summed up the effect of any such change in his oral evidence:

“The advantage of that from the Government’s point of view is that secondary legislation that people have previously relied on would not be overturned. The disadvantage from the claimant’s view is, as the Government seem to accept, that the successful claimant would not get any benefit from winning the case.”168

196.Plainly the use of prospective-only remedies in judicial reviews brought on human rights grounds, particularly if they were made mandatory, raises serious concerns about the ability of the courts to provide an effective remedy as required under Article 13 ECHR. It also raises the likelihood of those claimants who receive no effective remedy in the UK courts successfully pursuing their claims to the ECtHR.

197.The IHRAR has not taken place in isolation. It followed the Independent Review of Administrative Law (IRAL), which considered potential reforms to judicial review, which has itself been followed by a Government consultation. Since judicial review applications in the Administrative Court play a key role in enforcing human rights through the HRA, any reforms that would affect access to judicial review or the remedies available would have implications for the efficacy of the HRA and for compliance with the right to an effective remedy for a breach of an ECHR right (Article 13 ECHR).

198.Limited changes such as those recommended in the IRAL report could potentially be accommodated within a system that provides effective human rights protection. However, some of the proposals in the Government’s consultation paper, concerning ouster clauses and changes to judicial review remedies, could harm the ability of the HRA to be used to enforce rights and provide an effective remedy in accordance with Article 13 ECHR. The JCHR will carefully scrutinise the forthcoming Judicial Review Bill.

158 Report of the Independent Review of Administrative Law, CP 407, March 2021

159 The Human Rights Act fell outside the IRAL terms of reference, but the IRAL report acknowledged that there “is clearly a degree of overlap between” the IHRAR and the IRAL (Conclusions, para 5).

160 Civil claims for human rights breaches can also be brought in the county court (or high court) but they offer more limited remedies, usually damages (essentially compensation).

161 Ministry of Justice, Judicial Review Reform - consultation, CP 408, March 2021, para 90

162 See R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22

163 Ministry of Justice, Judicial Review Reform - consultation, CP 408, March 2021, para 39

164 Ministry of Justice, Judicial Review Reform - consultation, CP 408, March 2021, para 39

165 Ministry of Justice, Judicial Review Reform - consultation, CP 408, March 2021, para 86

166 Judicial Power Project submission to IHRAR, para 65

168 Q58 [Joshua Rozenberg QC]

Published: 8 July 2021 Site information    Accessibility statement