openJustice: Opinion

Who’s afraid of judicial review?

The government has pledged to ‘reform’ the way in which citizens can challenge the lawfulness of its own decisions. This should worry us all.

Oliver Carter
4 August 2020
The High Court in London which hears judicial review claims.
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From Pikist under public domain license.

The Prime Minister shutting down Parliament for five weeks during a time of national crisis. The government failing to meet its own air pollution targets. Falling numbers of rape prosecutions by the Crown Prosecution Service. The removal of safeguards for children in care during the current pandemic.

What these issues have in common is that they have all been the subject of recent legal challenges brought by judicial review against the government, local authorities and other public bodies. Whether the cause is the environment, social welfare, criminal justice, disability rights, civil liberties, healthcare or even parliamentary democracy, judicial review enables us as citizens to challenge the power of the state when we think it is acting unlawfully.

Last week, the government announced that an ‘independent panel’ – chaired by a former Conservative Justice Minister, Lord Faulks QC – will “consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”. This follows the Conservatives’ manifesto commitment to set up a Constitution, Democracy and Rights Commission to examine constitutional issues concerning the relationship between Parliament, the government and the courts.

Announcing the panel, the Justice Secretary, Robert Buckland, described judicial review as “an essential part of our democratic constitution – protecting citizens from an overbearing state”, but said the government wants to make sure it is “not abused or used to conduct politics by another means”. For the Shadow Justice Secretary, David Lammy, the government review is “a blatant attempt to disempower the public and hoard more power”.

It is important first to emphasise the distinction between Parliament and the government: the former as the sovereign legislature, the latter as the executive which governs subject to the limits placed on it by Parliament and the courts. While Acts of Parliament cannot be overturned by the courts, actions of the government – including secondary or delegated legislation made by Ministers – can be. Judicial review ensures that the government acts within the law as enacted by Parliament.

The terms of reference for the panel state that it will consider the types of decision which may be challenged by judicial review, the grounds of challenge which may be argued, and the remedies which the courts can grant when public bodies are found to have acted unlawfully. It will also consider the duty of candour, which requires public bodies defending judicial review cases to disclose any information or material facts which either support or undermine their case.

Following last year’s Supreme Court ruling that Prime Minister Boris Johnson’s prorogation of Parliament was unlawful, Lord Faulks argued in an article for ConservativeHome for legislation to “limit the courts’ incursion into political territory”. This argument is familiar, but falls apart when trying to define what constitutes a ‘political’ case and considering whether all ‘political’ decisions – whether made by national or local government or other public bodies – should be immune from legal challenge. Do we really want to live in a country where the government is free to act unlawfully, simply because it is doing so for ‘political’ reasons?

Aside from the chair, the five panel members are legal academics and practising lawyers, including the chair of the Constitutional and Administrative Law Bar Association. It is vital that they exercise their roles independently, and do not provide cover for the government to increase its executive power and erode its accountability to all of us as citizens.

The courts are already able to prevent the ‘abuse’ of judicial review by rejecting weak or spurious cases: in order to proceed to a substantive hearing, applications for judicial review must be granted permission by a judge. A case will only be granted permission if the court decides, after considering the application on paper, that there is an arguable case with a realistic prospect of success.

In 2018, only about five per cent of applications for judicial review lodged with the High Court that year reached a final hearing; the remainder were mostly refused permission to proceed, withdrawn or resolved out of court. Of the applications that did proceed to a full hearing, the public bodies defending the cases won 50 per cent and lost 40 per cent (the others were withdrawn or have not yet concluded).

It should be noted that this data does not include all of the proposed judicial review challenges which are not formally issued at court, often because they are settled between the parties without the need for court proceedings.

As a public lawyer, I work on approximately 25 judicial review challenges each year, often in the context of disability rights, social welfare or civil liberties. Of those 25 cases, only around five will be issued at court as applications for judicial review. And of those five issued cases, it is likely that only one (if any) will proceed to a substantive hearing in the High Court. This is very rarely because the court refuses permission; it is usually because the public body defendant accepts it has acted unlawfully and concedes the case.

For the many cases which do not reach the courts, this is often because a resolution is agreed between the parties following pre-action correspondence. The threat of judicial review, and the potential for an individual, campaign group or charity to use the courts to obtain a remedy, is sufficient to force a public body to act in accordance with the law.

Proposals to reform judicial review to limit the ability of citizens to challenge the state should be seen for what they are: an attempt to avoid scrutiny of decision-making. Cuts to legal aid in recent years have already diminished our ability to defend our rights in court: when the majority of people are not financially eligible for legal aid, the unavoidable conclusion is that justice is open to all only in the same way as the Ritz.

If you support the current government and would like it to be able to implement its policies without the risk of delay or interference by the courts, attempt the thought experiment of asking whether you would be prepared for a political party you oppose to govern without legal oversight.

Support for the rule of law as a constitutional principle does not mean you have to agree with the judgment by the courts in every case, much as support for representative democracy does not mean you have to agree with every law passed by Parliament. What is important is that public bodies, like all of us, are subject to the rule of law.

Ultimately, the creation of an ‘independent panel’ to consider restrictions on judicial review should prompt a simple question for all of us: do we want the government and other public bodies to act in accordance with the law? If so, surely we have to maintain an effective means for citizens to challenge the lawfulness of state conduct. And if politicians do not like losing legal challenges, there is a radical solution: act within the law.

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