It’s All Under Review: Boundaries to be set on Judicial Review

June 30, 2020

3 min read

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What's going on here?

The UK government is planning on setting the boundaries of judicial review to ensure that it cannot be used to conduct “politics by other means”.

What does this mean?

The Conservative party manifesto promised to establish a Constitution, Democracy and Rights commission to examine the relationship between government and the courts. As such, judicial review is under scrutiny as well as the appointment of Supreme Court Judges (see our article on that here). The manifesto stated that “judicial review [will be] available to protect the rights of individuals against an overbearing state while ensuring that it is not abused to conduct politics by other means or to create needless delays”. This position is supported by the Lord Chief Justice, Lord Burnett of Maldon, who stated on 13 May to the House of Lords Constitution Committee that “the business of judicial review has grown substantially…so measured and scholarly debate about the boundaries of judicial review…is proper when looking at constitutional arrangements”.

What's the big picture effect?

Judicial review is the name given to the procedure which challenges an administrative decision in the courts and has its roots in the common law. Judges’ attitudes towards the law and wider society have been key in driving its expansion, a trend that Parliament has rarely interfered with. This has maintained the balance of power in the UK’s unwritten constitution. But, in recent years, many commentators have argued that the courts unduly infringe on the political sphere. The term “politics by other means” was coined by former Supreme Court judge Lord Sumption just before the 2019 general election. In a series of lectures for the BBC, he argued that the use of judicial review was undermining democracy in the UK, asserting that an elected parliament should be the ultimate judge of government policy, not the courts. 

Judicial review has expanded significantly since the Human Rights Act 1998 (HRA) was implemented as its interpretation could be applied to numerous fields of litigation.  Consequently, the Conservative manifesto also pledged to “update” the HRA and replace it with a British Bill of Rights. This is an idea which has been circulating since Cameron’s premiership. With a large Conservative majority, reforming the HRA would be a quick solution in limiting the scope of judicial review. 

Campaign groups, such as the Good Law Project, regularly use judicial review to challenge the government. One such example is the government’s decision to grant a small pest-control company a contract worth £108m to secure PPE; a third of the PPE contracts budget (for context the company has a mere 16 staff and £19,000 of assets). Arguably one of the most famous of these judicial review cases was the prorogation of Parliament in 2019 (see our article on that here). These demonstrate that judicial review is a fundamental corrective mechanism of our unwritten constitution, ensuring that the balance of power is maintained between the different branches of government. The majority of judicial review cases involve individuals challenging their circumstances at a great financial cost. This has led to a record low in the number of judicial review cases in the last decade. It is also worth noting that the government wins 75-80% of these cases, arguably indicating that judicial review does not typically result in a subversion of parliamentary or executive decisions

Returning to the comments made by the Lord Chief Justice, one might question why has he decided to side with the government. Is this an indication to judges that they need to rapidly change their attitudes or face the force of reform by a government wounded by the courts? Ultimately, judicial review is a delicate matter. Rushing into reform would deny many people access to justice, potentially creating another avenue that would quickly turn blue votes red.

Report written by Michael Johnson

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