Judicial review under the microscope

On the 31st July, the Government announced the launch of an independent review of administrative law, with a panel of experts. This will involve investigating the scope of judicial review, and examine whether the Supreme Court has become “too politicised,” as determined by Prime Minister (PM) Boris Johnson.

Arguably, this decision to interrogate the role of judicial review, comes as a result of the Supreme Court ruling on Article 50 and the prorogation of Parliament. Consequently, many of its critics say that constraining the powers of the courts will prevent citizens from being able to hold the state accountable.

Further questions have been raised over the independence and autonomy of the panel, considering that it is chaired by former Conservative Justice Minister, Lord Faulks QC.

Consequently, Shadow Justice Secretary David Lammy, has called the move a “blatant attempt to disempower the public”. Is this just another assault on political accountability and the rule of law?

What triggered the review?

The Conservative Party have argued for years that judicial review is used for political ends. However, the two events that primarily triggered the formation of this panel, were the decisions made on Article 50 and the prorogation of Parliament.

Back in 2017, the Supreme Court ruled that MPs and Peers had to give consent for the Government to trigger Article 50. Meanwhile, more recently in September 2019, it was ruled that the PM’s suspension of Parliament for five weeks was in fact, unlawful.

As a result, the PM now argues that the courts have become too politicised, and believes that  they are being used to “conduct politics by another means”. Many subsequently believe that the formation of the review panel is a way for him to exact his revenge for an incredibly public humiliation.

However, this accusation of the courts’ increasing politicisation was strongly denied by Lady Hale, former President of the Supreme Court. In 2019, she stated that the Supreme Court: “[Doesn’t] want to be politicised”. She added: “We don’t decide political questions, we decide legal questions. And in any event, parliament always has the last word”.

Further to this, reflecting on the prorogation ruling, the Baroness said to BBC Radio 4’s Today programme: “I don’t think we generally force governments to do things they don’t want to do. The courts from time to time tell governments or public authorities that what they do want to do is not lawful”.

And, while many agree that judicial review purely acts as a check and balance on power, and a way of holding the Government to account, others vehemently disagree.

Lord Faulks, Chair of the panel, argued in an article for ConservativeHome, that legislation is needed to “limit the courts’ incursion into political territory”. This has led many to believe that the panel’s conclusions have already been made.

It is also pertinent to note that Lord Faulks QC was the “right-hand minister” to Chris Grayling at the MoJ back in 2014, when, as part of LASPO, debilitating cuts were made to legal aid. Even back then, both were trying to restrict the scope of judicial review, with Grayling dubbing it “a promotional tool for countless Left-wing campaigners”.

In a Parliament lecture at King’s College London, Lord Sumption, former Supreme Court Justice, shared the same sentiment as Lord Faulks. He said: “We are only a democracy because ministers are answerable for the formation and execution of policy to Parliament. Parliament may not always be as effective as it should be. But the House of Commons is the only institutional means by which the electorate can influence policy”.

He added: “The appropriation by the courts of the right to decide where the public interest lies cuts across demarcation lines which are fundamental to the democratic state. Parliament is the proper forum for political opposition to the government. The courts are not”.

Meanwhile, Dominic Cummings, the PM’s Chief Advisor and infamous lockdown rule breaker, has stated that judicial review has become a “farce”. He argues that while judicial review was a “great blessing” back in the 16th century, it now needs to be scaled back.

Certainly, it can not be denied that there is increasing momentum from the Conservatives, to make substantial changes to justice in the UK. And, it appears that at least the chair of the panel has already made up his mind when it comes to judicial review.

The panel’s considerations

The Conservatives first made their promise to review the scope of the courts in their manifesto, back in 2019. Hidden away on page 48, was the plan to set up a Constitution, Democracy and Rights Commission, to examine the “relationship between the government, parliament and the courts”.

Subsequently, the panel will review whether or not the “right balance is struck between citizen’s rights and effective governance”. It is also meant to be entirely independent. However, according to Parliament’s website, Chair Lord Faulks QC, has only been non-affiliated since 30 July 2019.

He will be joined by Professor Carol Harlow QC, Vikram Sachdeva QC, Professor Alan Page, Celina Colquhoun and Nick McBride, all legal academics and practising lawyers.

The main considerations of the review will include:

• Whether the terms of judicial review should be written into law
• Which executive decisions should be decided on by judges
• Which grounds and remedies should be available in claims brought against the government
• Any further procedural reforms to Judicial Review, such as timings and the appeal process

Commenting on the panel’s work, Lord Chancellor, Robert Buckland QC MP, said: “Judicial review will always be an essential part of our democratic constitution – protecting citizens from an overbearing state.This review will ensure this precious check on government power is maintained, while making sure the process is not abused or used to conduct politics by another means”.

Speaking on his appointment as Chair of the review, Lord Faulks QC, said: “Together we will examine Judicial Review and the need to strike a balance between the right of citizens to challenge government through the courts and the elected government’s right to govern”.

According to the Ministry of Justice (MoJ), any recommendations made by the panel will be reviewed by the Lord Chancellor, and Michael Gove, Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office.

Backlash against creation of panel

The creation of the panel has been met with concern and outrage by those outside the Conservative Party. Many also fear that restricting the scope and powers of the courts will severely undermine the rule of law.

Back in March, Gina Miller, who won both the Article 50 and Prorogation cases against the Conservative Government, expressed her uneasiness over plans to end judicial review challenges in political circumstances. Speaking about this, she said: “I would argue there needs to be an increase [of legal scrutiny of government decisions]”. Voicing her concerns about the wider implications of such a move, she added: “It’s not just about political questions. What will this attack mean to social justice?”

Amanda Pinto QC, Chair of the Bar Council, has also implied that such restrictions on judicial review could have disastrous consequences for UK democracy: “Judicial review is a hugely important tool in a democratic society by which decisions of public authorities, including government, are subject to legal scrutiny. Far from being a mark of dysfunction, judicial review is an appropriate check on decision-making, of which a nation should be proud”.

This is a point also made by Simon Davis, President of the Law Society of England and Wales. Speaking about the importance of preserving the scope and powers of judicial review, he said: “Judicial review is a vital part of the checks and balances necessary to protect people from powerful institutions. It underpins the rule of law”.

Meanwhile, David Lammy, Shadow Justice Secretary, also argued that any erosion of judicial review would undermine democracy: “The independence of judges is central to our democratic settlement. Boris Johnson should keep his grubby, populist hands off the judiciary”. He also stated that the move was an attempt by PM Boris Johnson to “hoard” more power in No 10, and that the MoJ should instead be focusing its efforts on “getting the courts open safely during the pandemic”.

Undermining the rule of law

It seems apparent, both from the timing, and the choice of chair for the panel, that this review of administrative law, has been established to work in favour of the Conservative Government.

Speaking about the dangers of this not so implicit power grab, speaking to The Independent Businessperson Gina Miller, said: “The plans to curb the scope and power of judicial review should raise alarm bells for us all. The government appears to be more concerned with avoiding scrutiny than reform, and to announce these plans when parliament has risen is nothing but calculated”.

Additionally, there are already significant restrictions on judicial review. Only cases that have a likelihood of winning, or are in the public interest will be taken on and proceed to a substantive hearing. Weak and spurious cases are dismissed if they have no weight. In 2018, only 5% of cases made it to an oral hearing. So, when the panel says it was created to ensure that judicial review is not open to “abuse,” it already appears to be doing a pretty good job.

On top of this, according to the Bar Council, between 2015, and the end of September 2019, the number of applications for judicial review actually fell by 44%. Amanda Pinto QC, Chair of the Bar Council, says cuts to legal aid has been the driving force behind this decline.

And, while judicial review may be an annoyance to the Government, if it weren’t, it would not be fulfilling its function. Countless times, judicial review has ensured that the Government answers for environmental failings and violations, the infringement of civil liberties, failure to ensure effective justice, and the erosion of parliamentary democracy.

Scaling back the powers of judicial review is a dangerous move, especially when the reasons behind it, seem to be fuelled by revenge, and a wish to evade scrutiny. This would be an especially dangerous move now, considering the innumerable failures by the government during the ongoing national crisis of Covid-19.