What’s in store for judicial review?

9 March 2020 by Matthew Flinn

Tucked away on page 48 of the Conservative Party 2019 election manifesto, the following passage could be found in a section entitled “Protecting our Democracy”: 

After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.

That is something of a laundry list of many of the most charged constitutional issues faced by the United Kingdom. But of all the matters cited, the one which has received perhaps the most attention of late is the Government’s apparent intention to consider changes to our system of judicial review. 

Judicial review is a branch of public law, a mechanism by which citizens and interest groups can challenge the legality of decisions taken by government officials and public authorities. Therefore, it is an important means of regulating the relationship between the individual and the state. It is also frequently of direct relevance to protection of human rights, because pursuant to the Human Rights Act 1998, one of the available grounds of judicial review is that the decision at issue entails an act contrary to the provisions of the European Convention on Human Rights. 

More fundamentally, judicial can be understood as a tool for upholding one of the United Kingdom’s key constitutional principles: the rule of law. As Lord Hoffman said in R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295:

There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals … The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament …

Accordingly, it is unsurprising that the prospect of reform to the United Kingdom’s system of judicial review attracts significant interest. 

The Constitution, Democracy & Rights Commission has not yet been set up, although as stated in the manifesto it is expected to be established within the Government’s first year. It is thus not possible to assess any specific proposals for reform at this stage. Nevertheless, the context in which the Government has decided to examine this area of the law has led to some consternation about what might be on the horizon. 

That context need hardly be stated. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and R (Miller) v Prime Minister [2019] UKSC 41, covered on the Blog here and here — two judicial review cases in which the Government was found to have proposed or taken an unlawful course of action in respect of one of the most vexed political issues of our time (yes, Brexit), and two cases which instantly became compulsory reading for first-year students of constitutional law. Many commentators have identified anger and embarrassment about those decisions as underpinning the the Government’s view that steps should be take to ensure that judicial “is not abused to conduct politics by another means or to create needless delays”. 

So what might be done? Governments bemoaning the impact of judicial review — and seeking to reform it — is by no means new. In February 2014 then-Justice Secretary Chris Grayling said: 

In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool or simply to delay legitimate proposals.

Thus in 2012 the Government implemented a number of changes intended to address a surge in judicial review claims and the associated costs (4250 applications in 2001 to over 11,000 in 2011), including reducing the time limit for bringing applications in respect of certain planning decisions and procurement cases, and removing the right to an oral renewal hearing where permission to bring proceedings was refused on the papers as being totally without merit. Then in 2015, statutory changes were introduced in Part 4 of the Criminal Justice and Courts Act relating to disclosure of information about how cases are funded, and circumstances in which the costs liability of claimants could be capped.

Reforms in the past have, for the most part, focussed on administrative matters such as costs and fees, and matters of procedure (although some slightly more substantive changes have occurred — section 84 of the 2015 Act also broadened the circumstances in which relief in judicial review proceedings had to be refused the courts, by introducing a test of “high likelihood”). Is the Government now contemplating a more fundamental suite of reforms? 

Current Justice Secretary Robert Buckland QC has spoken of the need to “protect” the judiciary from unwillingly becoming involved in political decision-making. In an interview with Sky’s All Out Politics show he said: 

I do think at the end of it all we must preserve the independence of our judiciary, we must protect judges from ending up increasingly getting into a political arena, because I don’t believe that they want to be there. And I think it is the job of politicians to actually make those decisions.

I think we therefore need to look at ourselves as well, and the way in which government over the years has increasingly contracted out some of the political decision-making, created a vacuum, and into that vacuum we have seen unfortunately in some cases the judiciary having to make decisions.

Casting a rather different light on the motivations in play, recently appointed Attorney-General Suella Braverman has written of the need to “retrieve power” from the judiciary, and warned that “if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them ad odds with elected decision-makers, our democracy cannot be said to be representative.”

Changes to the law on standing to restrict the right to bring judicial review proceedings in the first place are one possibility, although such changes have been considered (and not proceeded with) in the past, and would be highly controversial. There has also been speculation about reform to the way Supreme Court judges are appointed, although Mr Buckland himself did say that he would be “extremely worried” if a US-style political appointment process was implemented in the United Kingdom and has indicated he would oppose it.

Meanwhile, any broad attempt at ousting the jurisdiction of the courts or restricting the substantive principles of judicial review that have developed over decades of common law jurisprudence could eventually lead to a constitutional show-down between the judiciary and parliament, with the tension between the rule of law, the separation of powers and parliamentary sovereignty bursting into open conflict. Some of these issues were discussed in a recent Supreme Court decision which the Blog covered here.

Accordingly, Amanda Pinto QC, Chair of the Bar Council, has urged caution, saying: 

We have not yet seen details of what a ‘review’ of the judicial review process might look like, but anything that seeks to limit the ability of ordinary citizens to challenge decisions of those with power is a red flag. There must not be any snap decisions to restrict a process that goes right to the root of our society, and which helps to uphold core principles including the separation of powers and the rule of law. Rather than attempting to block the exercise of anyone’s right to challenge it, the government should have confidence in its own decisions and not fear challenge.

Watch this space. 

Matthew Flinn is a barrister at 1 Crown Office Row.