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  • Writer's pictureDurham Pro Bono Blog

Reviewing Judicial Review: Is Reform Reasonable or Irrational?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Joe Cannon


In 2020 the Government set up the Independent Review of Administrative Law (IRAL) in order to determine whether changes to judicial review were necessary. This was reported back on 18 March 2021. The Government responded by launching a further consultation on more radical reform proposals.[1]



What is Judicial Review?

Judicial review is a ‘creature of the common law’.[2] It represents the judicial oversight of administrative action in the UK and questions the lawfulness of decisions made by public bodies. Traditionally under judicial review, courts were only concerned with the legality of a decision, not its merits - the court had no interest in answering the question, ‘which view is the better one?’.[3] Yet, judicial review has increased massively since the mid-20th century: ‘not only has judicial review grown wider in scope; its intensity has also increased’.[4]


Why does the Government want Reform?

It is this increase in the scope and intensity of judicial review which has prompted calls for it to be curtailed in some way. This is certainly the view of former Supreme Court Justice Lord Sumption, who has referred to excessive and inappropriate use of judicial review of government minister’s decisions.[5]


Of course, this is in the context of a Government already quite sceptical over judicial power, evidenced by their plans to reform the Supreme Court. Therefore, another potential reason for the Government’s dislike of judicial review in its current form is its embarrassing losses in both Miller I[6] and Miller II[7] (both were judicial review claims). For some, these ‘re-sharpened the suspicion of judicial review’[8] in Government circles.


These reasons both prompted the Conservatives to include in their 2019 manifesto a promise to set up a commission to look at ‘the relationship between the Government, Parliament and the courts’[9] and pledged to ensure that judicial review is not ‘abused to conduct politics by another means or to create needless delays’[10].

Is Reform Necessary?

The government’s enthusiasm for reform has been sharply criticised by many members of the legal profession. Notably, one of the most fervent critics is Stephanie Boyce, the president of the Law Society. For Boyce, the proposals to reform judicial review ‘risk taking power away from citizens’[11] and granting it to the government, ‘significantly weaken[ing]’[12] the rule of law and access to justice.


Further, the government’s claims that judicial review has been used inappropriately are not universally accepted. Indeed, IRAL recommended no, or very little, change on many of the issues it was asked to consider, and explicitly opposed tightening judicial review by means of restricting rules on standing or shortening the time limit in which one must make a claim. This is further supported by Bar chair Derek Sweeting QC, who argues that ‘evidence for the claim that [the balance between the executive, legislature and the courts] has been lost is lacking’.[13]


In fact, IRAL further recommended against ‘far-reaching’ legislation concerning judicial review. Most crucially, it also stated that there was evidence that judicial review claims were decreasing, not increasing (likely due to legal aid cuts) and ‘there was no suggestion that large numbers of claims lacking merit were being allowed to proceed’.[14]


Conclusion

This article has shown that the government’s grounds for extensive reform of judicial review are dubious at best. Whilst some reform is likely necessary, this should be pursued in line with the recommendations of IRAL. Further reform is likely only being considered as a way for the government to ‘get back’ at the judiciary, and is not desirable for maintaining the rule of law in the UK.



 

[1] Graham Cowie and Joanna Dawson, ‘Judicial review reform’ (House of Commons Library, 1 April 2021) https://commonslibrary.parliament.uk/judicial-review-reform/ accessed 8 June 2021.

[2] Ian Loveland, Constitutional Law, Administrative Law, and Human Rights (5th edn, OUP 2009) 455.

[3] R v. Somerset County Council, ex parte Fewings [1995] 1 All ER 513, 515.

[4] Mark Elliott and Jason N. E. Varuhas, Administrative Law: Text and Materials (5th edn, OUP 2016) 6.

[5] Owen Boycott, ‘Former top judge calls for fundamental review of politics post-Brexit’ (The Guardian, 4 February 2020) https://www.theguardian.com/politics/2020/feb/04/former-top-judge-calls-for-fundamental-review-of-politics-post-brexit accessed 9 June 2021.

[6] R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

[7] R (Miller) v The PM; Cherry and others v AG for Scotland [2019] UKSC 41.

[8] Owen Boycott, ‘What is judicial review and why doesn't the government like it?’ (The Guardian, 11 February 2020) https://www.theguardian.com/law/2020/feb/11/what-is-judicial-review-and-why-doesnt-the-government-like-it accessed 9 June 2021.

[9] Conservative 2019 Manifesto (Conservative Party, 2019) https://www.conservatives.com/our-plan accessed 9 June 2021 48.

[10] ibid.

[11] Gazette Reporter, ‘Queen’s speech: The profession reacts’ (Law Gazette, 11 May 2021) https://www.lawgazette.co.uk/law/queens-speech-the-profession-reacts/5108454.article accessed 8 June 2021.

[12] ibid.

[13] ibid.

[14] Haroon Siddique, ‘UK government accused of distorting findings of judicial review inquiry‘ (The Guardian, 19 March 2021) https://www.theguardian.com/law/2021/mar/19/uk-government-accused-distorting-findings-judicial-review-inquiry accessed 11 June 2021.

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