Judicial review: there is much at stake
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Marc Bloomfield
The purpose of judicial review is to determine whether public authorities are acting in accordance with the law. Without this challenge, claimant lawyers would argue that other fundamental constitutional principles, such as the separation of powers and parliamentary sovereignty, will be weakened. Judicial review is concerned with decision-making not only by central and local government, but also by public bodies and regulators, and so must continue to be available to all who are affected by those decisions.
Limiting judicial review has been a target of successive governments even after the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In December 2012, the government published Judicial review: proposals for reform (CP25, Ministry of Justice (MoJ)), which sought views on a package of measures to ‘stem the growth in applications for judicial reviews’. Another consultation, in September 2013, Judicial review: proposals for further reform (Cm 8703, MoJ), sought to find further ways to reduce time and money spent on ‘unmeritorious judicial review claims’.
As judicial review concerns decisions made by public bodies, it often touches on decisions that may be seen as political, though judges do regularly decide that cases are outside its scope. The case about prorogation (R (Miller) v Prime Minister [2019] UKSC 41) generated a lot of newspaper coverage about how political it was but many lawyers continue to regard it as uncontroversial.
There was a manifesto commitment from the Conservatives in 2019 to ensure that judicial review processes were ‘not abused to conduct politics by another means or to create needless delays’ (page 48). The Independent Review of Administrative Law panel has now issued its call for evidence, sending it to a number of ‘listed parties’ on 7 September 2020 with a deadline for responses of 19 October 2020. Its title asks:
Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?
The document opens:
The Independent Review of Administrative Law (IRAL) panel invites the submission of evidence on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally. The panel is particularly interested in any notable trends in judicial review over the last thirty to forty years (page 4).
The panel will look at what types of public law decisions can be subject to judicial review and the possibility of codifying in statute what would be covered. Should the government consider non-justiciable as against justiciable areas? Are procedural reforms needed?
The consultation is short. It sets out a list of questions to government departments, and asks for comments in response to those questions and for ideas for improvements to judicial review.
The questions on codification and clarity are interesting. Should there be statutory intervention in the judicial review process? Should it be made clear what decisions and powers can be subject to judicial review and should certain decisions not be within its remit? And is the process clear?
There are eight questions on process and procedure, about timescales, costs, remedies, reducing the need for judicial review, last-minute settlement, the role of alternative dispute resolution and the way that the rules of public interest standing are treated.
Costs? Yes. Many readers will have imagined that the costs issue had been so pored over by governments in the past 15 years or so that there would not be much left to tackle. But the review asks (at pages 7–8):
7.Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the courts?
8.Are the costs of judicial review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?
Leading firms Leigh Day, Bindmans, Irwin Mitchell, Bhatt Murphy and Deighton Pierce Glynn argue that without an open call for evidence early in the process it will ‘not be possible for the review to be genuine and fair’ (‘Law firms call for review of judicial review process to be genuine, fair and inclusive’, Leigh Day press release, 15 September 2020). In an open letter, they also complained that the panel members were ‘not fully representative of those concerned about the future of judicial review’.
There has been a lot of concern about Lord Faulks QC’s appointment, not least because of articles he has written, which make it clear that he has a strong opinion on this subject (‘The Supreme Court’s prorogation judgement unbalanced our constitution. MPs should make a correction’, Conservative Home, 7 February 2020, and ‘This opportunity to repeal the Human Rights Act, quit the ECHR and bring justice home may not come again’, Conservative Home, 26 April 2017).
Prominent barristers on social media including Dinah Rose QC (president of Magdalen College, Oxford) and Nick Armstrong from Matrix Chambers have flagged up considerable concerns about the consultation. Lord Falconer, Labour’s shadow lord chancellor, tweeted: ‘Once it’s rubber stamped curbing courts’ powers another check and balance lost.’
Professor Maurice Sunkin QC (Hon) of the University of Essex has, over many years, carried out research into the use of judicial review. There is therefore evidence on which to consider this subject and it is to be hoped that the panel will not bow to political pressure but will conduct an evidence-based review.
There will be many considered responses to the call for evidence. We must hope for a considered response in reply. A lot is at stake.

About the author(s)

Description: Carol Storer - author
Carol Storer is interim director of LAG. She was director of the Legal Aid Practitioners Group for 10 years until November 2018.