The Reform of Judicial Review

“We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays” according to the 2019 Conservative Party manifesto.

And then comes the Constitution, Democracy and Rights Commission chaired by Lord Faulks QC. Following on have been the Judicial Review Reform (Ministry Of Justice, 20 March 2021, updated 21 July 2021) and the Independent Review of Administrative Law (March 2021 and MOJ 31 July 2021), and the statement of Government Policy by Sir Robert Buckland LC, QC, made to the Public Policy Exchange (published by MOJ 21 July 2021), and the Public Policy Exchange Judicial Power Project. 

The Joint Committee on Human Rights has been concerned with human rights, the role of the courts, enforcement of rights by the individual, and the efficiency of judicial review. Looking into the role of judicial review in the UK, the Independent Review of Administrative Law concluded there is not a strong case for radical reform of judicial review. 

Insufficient efforts

As procedural issues play such a significant part in judicial review, there may be a case for an investigation by the Civil Procedure Rule Committee, chairman Birss LJ, which has recently investigated Welsh judicial review.

Government has published the Judicial Review and Courts Bill 2021 under which the court will be able to suspend the operation of a quashing order pending rectification of errors, i.e., the decision would be rendered voidable not void, clause 1, and no appeal will be allowed from a refusal of the Upper Tribunal to grant appeal clause 2 (reversing R (Cart) v Upper Tribunal [2011] UKSC 28). 

There have been considerable delays, because of the covid-19 backlogs and delays affecting all aspects of life. Does democracy really require that every new proposed building or road, coal mine or exploratory bore, or change in social welfare or social security or immigration should be subject to public consultation, local committee, appeal, public inquiry, the media, parliamentary debate, then on to the judge? 

Further clauses

More clauses may be expected as the bill progresses. A genuinely comprehensive statute on judicial review would be appropriate and welcome. Judicial review has grown up, almost surreptitiously, through procedural orders and a vast complicated jurisprudence of judicial decisions, and an accessible set of contemporary statutory principles would benefit citizens, lawyers and judges. The White Book has enjoyed too long an encrusting accumulation of procedural law called judicial review.

But Lord Faulks and his colleagues rejected codification of the law and the statutory definition of non-justiciable issues. Only immigration and asylum cases were recommended for limiting. The second reading in the House of Commons will take place in the autumn. 

Judicial review has expanded in scope over recent decades, and is generally thought to have been beneficial. The judges have acted cautiously and with restraint. They have upheld the rule of law. They have controlled excess by the Executive. They have respected the sovereignty of parliament, which is elected, responsible and accountable to the electorate, albeit only every four to five years.  They have acted in an objective, reasonable and pragmatic manner.

The Secretary of State has the power to fix the fees to be paid by claimants to the employment tribunal over employment issues. The Secretary of State raised the fees, legitimately concerned to discourage frivolous claims and to raise a contribution to the cost of the service. The number of claims fell dramatically. The Supreme Court struck down the raised fees. 

In the real world, the fees effectively prevented or impeded access to the tribunal, access to justice, for ordinary reasonable people, particularly putting women at a disadvantage (Unison v Lord Chancellor [2017] UKSC 51).  The judges have, however, refused to act in non-justiciable and political and party issues R (Miller) v Prime Minster [2019] EWHC 2381 (QB) Lord Burnett LCJ, Sir Terence Etherton MR and Sharp LJ – though reversed in that particular case in the Supreme Court. 

Politicization

The judges refused to review inherently political decisions, where there was an absence of legal standards upon which to judge, where it was impossible for the judges to make a legal assessment.  Some matters such as the exercise of the royal prerogative, as in treaties, or matters expressly regulated by statute, were beyond judicial powers, immune from judicial review. 

If Parliament decides to limit child tax credit to a maximum of two children, so be it R (SC, CB and 8 Children) v Secretary of State for Work and Pensions [2021] UKSC 26.  Ill-founded, unmeritorious and vexatious cases have been rejected. The judges would claim simply to have upheld the principles of the constitution. 

The Secretary of State issued guidance under the Child Sex Offender Disclosure Scheme, acting under discretionary common law and statutory powers. As a matter of policy, the police should disclose the status of the offender to the public, as a measure of the protection of children.

The challenge was that a legitimate expectation was that both the local people and the offender should be consulted by the police. Their lordships found that the Secretary of State’s power was discretionary and advisory, the practice was an element in good public administration, there was no infringement of any human right to privacy, nothing contrary to law, the guidance was according to law. 

The latest authoritative statement of the law regarding the scope of judicial review of a government or other authority policy document, or statement of practice, or guidance is now to be found in R v Secretary of State for the Home Department [2021] UKSC 37. 

The joint and only judgment, by Lord Burnett, known for his concern over the justiciability of these issues of policy and to maintain the respective roles of executive and judiciary, and Lord Sales, known for his extraordinary powerful intellectual analysis, sets out three rules or principles, in paragraph 46:

“… there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others.”

Where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way.

Where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position.

Where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a while, the policy presents a misleading picture of the true legal position.

Judicial overreach

However, there have been criticisms of some substance. Judicial overreach is the phrase. The judges have greatly expanded the scope of judicial review, at their own initiative. 

They have introduced the rather vague and nebulous proportionality principle, incorporated from the continental civil law system. Having left the EU, we need only “take account” of the ECJ judgments now. The UK may even withdraw from the European Convention on Human Rights.

The judges have virtually ignored clear legislative ouster clauses, clauses seeking to deny them jurisdiction. They have pronounced on parliamentary procedure, e.g., prorogation, arguably in breach of the clear terms of the constitutional settlement in the Bill of Rights 1688 - 1689. 

They have strayed into many seemingly sensitive political issues, such as parliamentary procedure, social welfare, legal aid eligibility, immigration, and whether the consent of Parliament was necessary in an Article 50 Brexit withdrawal situation (R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 and [2017] UKSC 5.

If the judges get involved in political issues, whatever view they take, then judges of the highest standing for integrity and ability are at serious risk of being shamefully defamed as “enemies of the people” by the media, a risk to which it could be said they by their own actions would have exposed themselves. 

Although in fact many of the applicants for judicial review have in the end failed, there has been much regrettable political and social controversy over the role of the judiciary, and much delay and expense for everyone involved.

A powerful advocate for the concern at these trends is Lord Sumption (see Trials of the State, Law and the Decline of Politics, dedicated to the next generation; Law in a Time of Crisis; Lord Sumption and the Limits of the Law).

So, is the power of the judges to be curbed?  Is the constitutional role of the judges changing or likely to change? Is the Executive becoming more powerful?  Is the sovereignty of Parliament being re-asserted and strengthened? Is the judicial independence of the judges being compromised? Is the constitution facing changes? Is there even a clear simple transparent plan for the future before parliament, the profession and the people?

Alec Samuels is a barrister.

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