And Now for Something Completely Different…

Last December was a rare instance where the average Canadians’ attention was briefly captured by a matter of administrative law, thanks to Russian spies and Super Bowl ads. Two months earlier, Britons’ attention was also captured by a matter of administrative law, involving a challenge to the prorogation of parliament by the Queen at the request of Prime Minister Boris Johnson. In that case, R (on the application of Miller) v The Prime Minister, [2019] UKSC 41, on judicial review the UK Supreme Court held that the prorogation had been unlawful.

The loss was significant for the ruling Conservatives. Moreover, this was only but one example of a setback for the government under judicial review proceedings. Thus, it came as no surprise that in their election platform for the 2019 general election was a proposal to establish an advisory panel to reform judicial review. According to the Conservative party manifesto (its electoral platform), it would be necessary to establish a Constitution, Rights and Democracy Commission (the “Commission”) in order to “restore trust in our institutions and in how our democracy operates.”

The manifesto did not provide specifics as to who needed their trust restored. Those in support of the proposal suggested that the review was necessary to reign in the power of the courts; critics maintain that the real purpose of the review is to limit the ability of affected parties to challenge governmental policies and decisions.

On July 31, 2020, the government established the Commission, consisting of six members, including its chair. In Parliament on September 1, 2020, the Lord Chancellor and Secretary of State for Justice, Robert Buckland, stated that the purpose of the Commission would be to “examine the effectiveness of judicial review as a mechanism for balancing the rights of the citizen and effective governance.” The terms of reference for the Commission, which are followed by eight explanatory notes, are:

1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.
2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular:

(a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

(c) on possible amendments to the law of standing;

(d) on time limits for bringing claims,

(e) on the principles on which relief is granted in claims for judicial review,

(f) on rights of appeal, including on the issue of permission to bring JR proceedings and;

(g) on costs and interveners.

Most of these terms relate to procedural matters rather than the substance of the law. However, it is through procedural change that the government can significantly curtail an interested party’s ability to undertake a judicial review of an administrative decision. In that regard, the fourth item of the terms of reference are of most concern. On my reading of the scope of the areas of reform suggested in the fourth item, they appear more to address the government’s concerns than any concerns the public might have.

Nevertheless, it remains to be seen what the outcome will be of the Commission’s work. While there is the possibility any proposals may largely be relatively benign, there is a significant potential for suggestions of significant change that might result in greater restrictions in access to justice through judicial review.