‘It is not that often that first instance judges in judicial review claims disagree as to the approach to be taken in the context of a core question relating to judicial review. When it happens, administrative lawyers are bound to take notice. This has most recently occurred in the context of rationality challenges to decisions taken by the Secretary of State for Justice to reject Parole Board recommendations to release or transfer to open conditions. The most interesting aspect of this recent phenomenon is that the High Court has managed to hand down, on our count, 13 reported decisions over the last two years, before the Court of Appeal has had the opportunity to “resolve” the issue, although a hearing is currently listed before the Court of Appeal in appeals against two of these decisions in October 2024. In this piece, we seek to explain the current position, highlighting areas of agreement and disagreement between first instance judges, and which questions remain, as yet, unresolved.’

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UK Constitutional Law Association, 11th July 2024

Source: ukconstitutionallaw.org