'Extremely odd': Bar criticises logic of judicial review reforms

The bar’s representative body has criticised the government for failing to think through how its proposed judicial review reforms would work in practice in yet another damning response to the Ministry of Justice’s controversial consultation.

The Bar Council, which represents 17,000 barristers, said the Ministry of Justice’s six-week Judicial Review Reform consultation was inadequate ‘not only because of its shortness but also, and more importantly, because of a lack of analysis of how the proposals would actually work’ in its newly published consultation response.

The government proposes mandating the use of suspended quashing orders. However, the Bar Council questioned what would happen to cases heard in the intervening period.

An anonymous barrister holds their wig in front of them

It said: ‘The proposals for suspended quashing orders envisage leaving the old law in place in the interval between the judgment and the time the quashing order comes into force. But what then, is a decision-maker to do when he needs to decide an individual case in the gap?

‘The Court of Appeal has, for example, decided that the law is not x but y. It issues a suspended quashing order. The logic of the government response is that the decision maker applies law x, despite the existence of a judgment saying the law is y. This is at the least extremely odd. The oddness is not a result of issues arising from the distinction between void and voidable, but from the contrast between the law the decision-maker is compelled to apply and the reasoned judgment of the Court of Appeal saying that view of the law is wrong.’

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As well as criticising the time allowed for consultation, the Bar Council was ‘very concerned’ that the government was seeking to bring forward proposals that went beyond what the Independent Review of Administrative Law (IRAL) recommended.

It said: ‘The Bar Council and others asked for more time to respond – this was refused with, we regret to say, the wholly unconvincing justification that respondees have already had the opportunity to consider the matter in the context of the IRAL. That reasoning glosses over the point that the most significant elements of the consultation are new. In the Bar Council’s view, if such weighty matters are to be considered it would be much more appropriate if they were to be the subject of thorough consideration, for example by the Law Commission.’

The Bar Council is the latest in a growing line of organisations that have submitted highly-critical responses to the consultation on judicial review.



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