Tribunal dismisses appeal for disclosure of Whitehall submissions on Judicial Review and Courts Bill

By Lee Xuanyi


https://www.lawsociety.org.uk/topics/blogs/westminster-update-government-drops-statutory-presumption-from-judicial-review-and-courts-bill


A tribunal dismissed the Public Law Project’s appeal for the Ministry of Justice to disclose submissions by 15 government departments, including Downing Street to the Independent Review of Administrative Law. These unpublished submissions contained judicial review reform proposals intended for the Judicial Review and Courts (“JRC”) Bill.


What is the JRC Bill?


The JRC Bill was laid before Parliament in July 2021 and is currently in the report stage of the House of Lords. The bill intends to make provisions primarily relating to


1) the scope of quashing orders by courts

2) restricting judicial review of certain decisions of the Upper Tribunal

3) the use of written and electronic procedures in courts and tribunals [1]


Clause 1 of the JRC Bill proposes a new section 29A to the Senior Courts Act 1981, restricting quashing orders to a suspending effect, allowing the government to modify its decision in light of the quashing order.


The Bill has been criticised by the Equality and Human Rights Commission for attempting to remove the Cart [2] judicial review process for challenging Tribunal decisions on error of law grounds (s.2(1)(2) states, with regards to the Upper Tribunal’s permission-to-appeal decision, that this ‘decision is final, and not liable to be questioned or set aside in any other court’) [3] as the Cart process represents a safeguard for ‘fundamental rights’. [4]


The Tribunal’s decision


Ultimately, the tribunal’s decision for non-disclosure was driven by the public interest in maintaining the convention of cabinet collective responsibility. The Whitehall submissions would reveal ‘wide ranging, frank and in some instances divergent’ views. [5] However, the tribunal also dismissed the Ministry of Justice’s claim that disclosure of the submissions would ‘add nothing’ [6] to Parliamentary debate of the JRC Bill. The tribunal stated that “a better-informed public debate must always be preferred… because it supports the objective of transparency”. [7]





References

[1] UK Parliament, Parliamentary Bills: Judicial Review and Courts Bill (28 March 2022) https://bills.parliament.uk/bills/3035, accessed 29 March 2022

[2] R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28

[3] s.2(1)(2) Judicial Review and Courts Bill 2021

[4] Equality and Human Rights Commission, Judicial Review and Courts Bill, (October 2021)

[5] M Fouzder, “Whitehall submissions would have 'facilitated' scrutiny of JR reforms - tribunal”, <https://www.lawgazette.co.uk/news/whitehall-submissions-would-have-facilitated-scrutiny-of-jr-reforms-tribunal/5112023.article> accessed 9 Apr 2022

[6] Ibid.

[7] Ibid.