Summary

The judicial review process may be subject to change during this parliamentary session. In December 2019, the Conservative Party’s election manifesto committed to an examination of judicial review. This followed several high-profile judicial review cases that saw the Supreme Court rule against the Government on decisions that it had taken on the UK’s departure from the European Union.

What is the Government’s plan for judicial review?

The Conservative Party’s manifesto for the December 2019 election committed to a broad review of the UK constitution. As part of this commitment, the Conservative Party said it would “ensur[e] that [judicial review] is not abused to conduct politics by another means or to create needless delays”. This follows previous governments’ calls to change the judicial review process. For instance, in February 2014, the 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.

The Conservative Party’s 2019 manifesto proposed to set up a constitution, democracy and rights commission to carry out the review of the UK constitution. The commission would look at the relationship between government and the courts, amongst other things.

The Financial Times reported that the constitutional review is expected to be overseen by Minister for the Cabinet Office, Michael Gove alongside the Justice Secretary, Robert Buckland, and the Attorney General, Suella Braverman. Mr Gove and his team were reported in the Financial Times as responsible for setting the terms of reference for the independent review. The newspaperalso reported that the commission and the constitution review would be led by an independent person, who the Government is yet to appoint.

Recent judicial review cases

Discussion about judicial review has recently increased following several high-profile cases.

In January 2017, the Supreme Court considered a judicial review case that claimed the Government needed an Act of Parliament before it could give formal notice of the UK’s decision to withdraw from the European Union. The Supreme Court held that an Act of Parliament was required to allow ministers to give this notice.

A more recent case saw the Supreme Court consider the lawfulness of the proroguing of Parliament in September 2019. The Supreme Court held that Parliament’s suspension had been unlawful. The Supreme Court said that the prorogation had the effect of frustrating or preventing Parliament carrying out its role without reasonable justification.

The Times reported in February 2020 that the Prime Minister planned to speed up moves to limit the powers of individuals to challenge ministers in courts through judicial review. This followed a ruling from the Court of Appeal that stopped the deportation of 25 people from the UK to Jamaica following claims that they had been denied access to lawyers.

Why does the Government think a review is important?

During a debate on leaving the European Union in January 2019, the then Attorney General, Geoffrey Cox, said that the Government wanted to determine whether the judicial review process could be made more efficient and streamlined. Mr Cox referred to certain judicial review cases that “should perhaps never have been started” and spoke of “prevent[ing] the courts from being clogged up with [such] applications”. Mr Cox’s statements were in response to Nick Thomas-Symonds, the Shadow Solicitor General, expressing concern that:

the Prime Minister was seeking some sort of vengeance because he did not like the Supreme Court’s decision that his prorogation of Parliament was unlawful.

Mr Cox was separately reported in The Times to have said that the Government’s desire to amend judicial review did not stem from the prorogation ruling of the Supreme Court. The newspaper quoted Mr Cox as saying that “[the] desire [to amend judicial review] has been around for a long time”.

What has been the reaction to the Government’s plans?

Writing before becoming Attorney General, Suella Braverman expressed her support for the creation of a constitution, democracy and rights commission to “ensure the boundaries of judicial review are appropriately drawn”.

Lord Reed of Allermuir, the President of the Supreme Court, was reported in the Law Gazette as having argued that judges had not “over-extended their reach”. Lord Reed said that the relationship between Parliament and courts needed addressing. In response to the Prime Minister’s proposals for a constitution commission to examine the role of judicial review, Lord Reed said:

Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.

Lord Reed also said that it was laws enacted by Parliament, such as the Human Rights Act 1998 and European Communities Act 1972, that had provided the courts with a duty of enforcing laws which relate to political and constitutional issues.

The chair of the Bar Council, Amanda Pinto QC, has spoken of the risks of changing the judicial review process. Ms Pinto said:

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. […] 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.

The President of the Law Society of England and Wales, Simon Davis, is also reported in the Guardian to have 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.

What is judicial review?

Judicial review is a process where a judge reviews the lawfulness of a decision or action made by a public body. Judicial review considers the way that a decision has been made. It does not determine the rights and wrongs of the conclusions reached.

The judicial review process has already been subject to amendments over the past decade. In 2012, the Government introduced a reduced time limit for bringing judicial review cases for certain planning decisions and procurement cases. In 2015, part 4 of the Criminal Justice and Courts Act 2015 introduced changes to the judicial review process. This included changes relating to the disclosure of information about how cases are funded and the circumstances in which the costs liability of claimants could be capped.

What are the Government’s next steps?

It is unknown when and what changes to the judicial review process may be introduced. The Institute for Government believe that any legislative changes to judicial review are likely to be taken once the constitution, democracy and rights commission has reported. It is unclear if the coronavirus pandemic will affect the review’s timetable.

The Government is yet to release any further details. In response to a written question from Caroline Lucas (Green Party MP for Brighton, Pavilion) on 12 March 2020, the Government said that discussions on the review were continuing and would be announced in due course.

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