The British government announced in July 2020 that it intends to establish an independent committee to reconsider the remit for judicial review. Judicial review is where “a judge reviews the lawfulness of a decision or action made by a public body”. This government decision follows a series of successful judicial review cases which were not favourable to the Government and which also received wider public backlash. From a legal perspective, however, to interfere with the scope for judicial review means increasing the difficulty to bring certain types of claims, where review is often the only means of resolution in law. So, what does, and could, this mean for the rule of law and human rights in the United Kingdom?
WHAT IS JUDICIAL REVIEW?
Judicial review is a type of legal proceeding through which the courts consider the lawfulness of the way a decision was made, as oppose to the correctness of the outcome. The courts, if they find a decision objectionable cannot substitute their outcome for that of the government body. Rather, the court will generally order the public body to re-make that decision where they find it was not done in accordance with law or policy in the first instance. Alternatively, the government decision can be declared unlawful and invalid, but without the government being required to take any further action.
A decision can be overturned if a public authority has acted in a way which is procedurally unfair, irrational or incompatible with the Human Rights Act 1998. For this reason, decisions submitted for judicial review often involve an interference with human rights, where the government body has not duly assessed of all the relevant circumstances of the applicant. Such decisions can, for example, relate to provision of welfare benefits, education for children with learning disabilities, immigration or asylum outcomes, or prisoners’ rights.
Review as a means of challenge is therefore vital for the functioning of an effective judicial system which seeks to maintain fundamental human rights as well as a distinct relationship between democratic institutions and the people. The outcome, or even the process itself, can highlight areas where government bodies are not functioning effectively and can even lead to institutional changes.
In the United Kingdom (UK), the judicial review mechanism is considered broad-reaching and generous. European states generally have “a separate system of justice for obtaining redress against government actors” consisting of a special court which functions according to its own legal principles, for example, the Conseil d’Etat in France. In contrast, the UK undertakes judicial review “before the same courts and under the same legal principles as private individuals”.
A second reason why judicial review in the UK can be considered to be more broad-reaching is the absence of a written Constitution in the UK. Most state mechanisms for judicial review (or the review of administrative decisions in the comparative sense) are mandated on the principles of a national Constitution. The judicial review would thus determine whether decisions of public bodies are in line – in the same sense of illegality, irrationality, and fairness-based analyses – with the national Constitution as well as other relevant laws. The Supreme Court of the United States established in Marbury v Madison (1803) that it can review and declare a legislative or executive act in violation of the Constitution. The UK does not have such a written Constitution to enforce and this is the reason for its broader scope and perhaps for the treatment of the Human Rights Act as a comparative constitutional reference document.
From a human rights perspective this broad scope is beneficial and is considered the better law because it reflects a “superior legal tradition deeply committed to individual liberties, limited government, and the rule of law”. It is these qualities, however, that are now under threat from government reform, restriction and restraint.
PROTECTING GOVERNMENT REPUTATION
In March 2020, the Conservative government lived up to its manifesto promise to establish an Independent Commission – the Constitution, Democracy and Rights Commission – to look at “the relationship between the government, parliament and the courts”. Its mandate includes “examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective governance”. The government justified this step by arguing that the Human Rights Act has “created a culture of ‘risk aversion’ among public authorities”.
The current Attorney General, Suella Braverman, in agreeing with this decision argued that the UK cannot be a representative democracy where “a small number of unelected, unaccountable judges continue to determine wider policy… at odds with elected decision-makers.” Oxford Professor Richard Ekins also agreed with the step, and proposed that the decision to establish the Commission is “an important development in the government’s efforts to address the misuse of power and balance of our constitution”. Ekins argued for the restructuring of the court system to effectively weaken the Supreme Court.
While there is no doubt that there must be a separation between the government and the judiciary, it is doubtful whether limiting the scope of judicial review of government decisions will be a positive or even useful change. In the first place, the review is there for the very reason that the judiciary is separate from the government, as it would be ineffective to have an “in-house” review. Secondly, by holding the government accountable it serves one of the most fundamental aims of democracy. Thirdly, it also ensures the protection of fundamental human rights.
It is hardly surprising, therefore, that this strong discourse and the establishment of the Independent Commission followed on high-impact judicial review cases. For example, the Supreme Court found against the government in two cases relating to the UK’s withdrawal from the EU, Miller (No.1) [2017] on the triggering of Article 50 and Miller (No.2) [2019] on the lawfulness of the government’s prorogation of Parliament. In the Supreme Court case of Begum v Special Immigration Appeals Commission (SIAC) [2020] the court also ruled against the government’s decision not to grant Begum leave to enter the UK in order to carry out her appeal, drawing both Government and public backlash.
Depending on your stance, these three cases in three years prove either the importance and effectiveness of judicial review or the overreach of the judiciary into public decision-making. Importantly, none of the cases cited above overruled the government decision. Rather, they required the government to pass legislation, declare the prorogation void to reconsider its decision, respectively. As such, the separation between law and policy remains, as does the importance of judicial review as a means of legal challenge in cases which pose questions of high importance.
Nevertheless, “it is no secret that the Government regards the courts, and their judicial review function in particular, as a thorn in its side”. This is in line with the role of the courts in a “constitutional democracy that respects the rule of law and separation of powers”.
THE COMMISSION’S REVIEW: RISKING A CONSTITUTIONAL CRISIS
The government’s independent assessment of judicial review was launched on 31 July 2020. The scope of the assessment includes whether judicial review should be legislated for, what decisions should be allowed in its remit, what grounds and remedies should be available for challenges, and potential procedural reforms. No public consultation for the review has been proposed.
In a parliamentary debate on human rights, former Attorney General Geoffrey Cox, argued that this is a matter of streamlining the system and not “backsliding upon the fundamental principle of the independence of the judiciary”. Yet, from the words of Braverman above, the intention is clearly to weaken judicial review, thereby limiting the independent role of the judiciary in holding the government accountable.
It is rather ironic that the government, in order to maintain the independence of its decisions, intends to encroach on the independence of the judiciary. This is an isolationist step which legal practitioners have held to be an assault on the rule of law. It also follows on years of making judicial review more difficult, for example with cuts to funding, imposed time limits and new materiality thresholds for applications. More importantly, in the view of former shadow Solicitor-General Thomas-Symonds, it is people’s right “to hold public authorities to account [which will be] watered down”.
While the government is within its power to legislate on judicial review, the review is deeply troubling from the perspective of rule of law, separation of powers and human rights. The government should be cautious of re-writing the balance in a way which threatens these values and “risk[s] a constitutional crisis”.
Maria is an LLM Human Rights graduate from Central European University in Budapest, Hungary. She is a volunteer for multiple human rights-focused organisations, a locum support worker and an aspiring barrister.