What’s in store for judicial review?

9 March 2020 by

The electoral map: Boris Johnson’s victory in the general election in December has put reform of judicial review firmly on the political agenda

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.

2 comments


  1. Our unwritten constitution is actually a great credit to this democracy. It is constantly being updated, and our judiciary are world renowned for their independence. Compare that with the written constitution of the United States which is virtually un-amendable nowadays and the highly politicised US Supreme Court bench and nomination process. Whatever the government may lament about the frequency of review of executive decisions and those outcomes, it fails to grapple with the fact that the courts (nearly) always defer to the clearly written letter of the law and the sovereignty of Parliament. I say nearly, because there have been some controversial rulings concerning ouster clauses. But the government is not Parliament, even now. Parliament reigns supreme.

  2. Jonathan Edwards says:

    I’m fairly relaxed about threats to JR, as I think its pretty safe. But the hot topic is elsewhere, in my view. The UK is badly let down by its “Constitution” which is not fit for purpose. So this new Committee may be an opportunity to get reform going. We are 200 years behind the USA. And more modern Written Constitutions have moved on again. This affects JR, btw. If the Judiciary is properly entrenched as a branch vis-a-vis the Executive and Legislature, many tensions will disappear. We’ll have the debate at a Constitutional Convention on how far JR goes, and then we’ll agree on a balance. And Government Ministers won’t then have the scope for sniping they have now.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: