Tory judicial review plans risk 'rule of tyranny'

Considerable alarm has been prompted by Conservative plans to review the judicial review process.

In its 2019 election manifesto, the Conservative Party says it will establish a Constitution, Democracy and Rights Commission, in its first year in government, to consider judicial review and other constitutional issues including updating the Human Rights Act (HRA). 

The manifesto states: “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.”

Responding to the manifesto, Daniel Machover, head of civil law at Hickman & Rose, warned: “The Conservatives’ proposals on judicial review risk being used as a vehicle to stop citizens exercising their vital right to legitimately stop a public authority from acting illegally. 

“Preventing such challenges would significantly damage the rule of law and take us towards the rule of tyranny.”

He also pointed out, as many were quick to observe this week, that Boris Johnson himself recently made use of the judicial review process.

Earlier this year – before becoming Prime Minister – he applied for a judicial review in an attempt to quash a court summons issued against him for alleged misconduct in relation to promises made during the Brexit referendum. 

Joanna Cherry QC, who separately brought judicial review proceedings in Scotland on the basis that the prorogation of Parliament was unlawful (she won in the Supreme Court), described the Conservatives’ plans to review judicial review as “sinister” and “pretty desperate stuff”. 

She commented on Twitter: “[It] seems their plan is to try to put government and executive action beyond legal scrutiny. 

“This is usually only the position in a dictatorship not a democracy governed by the rule of law.”

Machover also expressed doubts that judicial review is being “abused” as the Conservatives claim.

The Conservatives also pledged to “update” administrative law, as well as the HRA “to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. 

He added: “I’m not aware of any evidence to justify the claim that judicial review is being ‘abused to conduct politics’, as the Conservatives claim in their manifesto.”

He pointed out there are already “a number of safeguards against abuse in the JR system” with the permission stage and the existing costs consequences of losing, which already mitigate against inappropriate applications.

Many judicial reviews taken over the decades have, he pointed out, involved challenges to government ministers.

“But the fact that many such challenges have succeeded shows they were made legitimately – those without any merit were no doubt stopped in their tracks at the permission stage.”

If the Conservatives win the election, Boris Johnson would undoubtedly need a significant majority to get any proposals to change the judicial review process and changes to the HRA passed by parliament.