Last rampart against government excesses
With a majority in parliament, government can pass any law it likes, but it cannot discount the power of senior judges if it goes too far
A new front has opened in the opposition to the proposed judicial review reforms. This time, the arguments are not based on access to justice and depriving the most vulnerable in society from exercising their rights but on whether the reforms would unsettle the constitutional covenant between the executive, parliament, and the judiciary.
Barrister Amy Street, of Serjeants Inn Chambers, is also research director at The Constitution Society. Earlier this week she published her report on judicial review and the rule of law. The main question, she suggests, is whether the courts derive their judicial review jurisdiction from parliament or from the constitutional principle of the rule of law. If the latter, they could feel justified in not applying the will of parliament.
The first round of reforms was steamrolled into law and came into force in the summer. They were tame compared with the second set of proposals, which would require, among other things, that applicants have a direct interest in the decisions they challenge. This could result in unlawful acts being put beyond the reach of the courts, Street argues, which would be contrary to the rule of law.
Other proposals could result in more tangible restrictions on the ability of individuals and organisations to seek redress in court. Protective costs orders (PCOs), for instance, would not be available where there is a private interest, regardless of whether there is a public interest. Bearing in mind that, under the proposed rules, an applicant would have to have a private interest, this would rule out the availability of a PCO in all cases.
In recent years the senior judiciary has shown remarkable courage in upholding civil liberties against the wishes of government. Some say it has gone too far. Take the application of human rights legislation to combat troops. But if these latest reforms go forward, senior judges will be the last rampart protecting the rule of law and individual rights against the government's power creep.
There is a good reason why judges aren't elected, former lord justice Konrad Schieman reminded us on the launch of the report: it's to make sure they are not under the same pressure as elected politicians keen to please whoever will vote for them at the next general election. Which is why judges have been able to stand up to government, occasionally using rules of statutory interpretation to achieve a fair outcome consisten with the rule of law.
Campaigning groups have undoubtedly used judicial review as a tool against government decisions they regard wrong as a matter of policy. Most judicial review proceedings, however, are aimed at local authority decisions. There's no denying that some are brought by disgruntled individuals causing unnecessary delays and costs. Yet, the government's premise is that the law is being abused to justify its proposed erosion of a rule that allows ordinary individuals and organisations to hold those in power to account. With a majority in parliament, government can indeed pass any law it likes, but it cannot discount the power of senior judges if it goes too far.
Jean-Yves Gilg is editor of Solicitors Journal
jean-yves.gilg@solicitorsjournal.co.uk