Hogan Lovells publishes opinion to the Government's Response on the Independent Review of Administrative Law

The firm’s full submission is available here. The IRAL Panel, chaired by Lord Faulks QC, a former justice minister, was launched in July 2020 to consider options for reform to the process of Judicial Review. The Independent Panel submitted their Report to the Lord Chancellor and the Chancellor of the Duchy of Lancaster in January 2021.

Charles Brasted, head of the Public Law and Policy team at Hogan Lovells in the UK, said: “Many of the proposals in the Response seek to enhance certainty in the process and outcomes of judicial review. We agree with the importance of predictability, certainty and transparency in judicial review but this must be balanced with the need to maintain judicial discretion, which allows the courts to make decisions about each case on its specific and often complex facts and in accordance with the requirements of fairness.”

Commenting on some of the specific proposals regarding remedies in judicial review, Charles Brasted said: “We support efforts to enhance the courts’ remedial discretion and can see merit in judicial-led guidance as to how that discretion may be exercised to provide some level of predictability for parties.  However, as our response makes clear, any proposals to introduce legislation to govern the use of judicial discretion, either by setting out the factors that must be considered by courts, or creating a presumption in favour of, or mandating, particular remedies must be viewed with great caution.  In our view, this has the potential to interfere with the fundamental purpose of judicial review of providing accountability and remedies for unlawful conduct by public bodies.”

Public Law and Policy partner, Julia Marlow, also commented: “At a time when it is imperative that we do all we can to ensure that the UK is an attractive place for businesses to invest, it is crucial that our legal system continues to provide an effective mechanism for challenging unlawful government decision-making as well as flexibility as to the available remedies in each case.”