Unjust Government?: Government reform set to change judicial review

April 16, 2021

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3 min read

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What's going on here?

Following the Independent Review of Administrative Law (IRAL), the government plans to reform judicial review to address imbalances between citizens’ rights and effective government.   

What does this mean?

In July 2020, Justice Secretary Robert Buckland QC MP appointed former Justice Minister Edward Faulks QC to chair the IRAL. The Review was set up to better understand how judicial review operates within the UK, focusing on the politicisation of the judiciary and current power imbalances. However, the Review appears to have backfired on Buckland and the Conservative party. Instead of producing damning evidence, Faulks reported “the independence of our judiciary… should cause the government to think long and hard before seeking to curtail its powers”. Indeed, this independence has been shown throughout the past decade in landmark cases like Millier I and Miller II. 

With this said, the IRAL did make two propositions. The first of these was the removal of ‘Cart’ judgements. These judgements are a form of judicial review which prevent appeals from proceeding to the High Court in Immigration and Asylum cases. The Review found only 12 out of 5,502 cases (0.22%) were upheld, thus disproportionately wasting judicial resources and raising litigation costs. Secondly, the Review recommended empowering judges to suspend quashing orders, helping the courts to work with greater flexibility. All in all, the Review’s recommendations are of little significance compared to the damning effects Buckland hoped to achieve

What's the big picture effect?

Given the above recommendations, it might be argued the IRAL will have little significance on the entirety of judicial review in the UK. However, Buckland appears to have now produced his own ‘shopping list’, which bears little to no resemblance with the IRAL’s findings. Included in this list are ‘ouster clauses’ which would allow Parliament to determine which areas are unsuited to legal accountability. Such clauses could have a detrimental effect on the potency of judicial review, effectively excluding judicial scrutiny from selected government matters. In many ways, this would undermine the purpose of judicial review itself. Judicial review is not a switch that can be turned on and off at the executives choosing, but a fundamental check on executive power. For instance, judicial review helped to expose the Health Secretary’s breaking of procurement law over PPE contracts. Through this lens, Buckland’s new shopping list appears to be a set of sinister tools which can be applied to dismantle the independence of the judiciary. Indeed, senior partner at Edwin Coe, David Greene, believes “ouster clauses should be very specific, reflecting constitutional norms and should not be used more widely”

However, is there any basis for such reform? In practice, the UK constitution has been inept at producing any type of middle ground between judicial review and a less draconian alternative. In this way, the UK legal system would benefit from introducing a dispute resolution service that could offer a cheaper and more efficient substitute to the “nuclear button” of judicial review. However, this type of reform is nowhere to be seen, and the Conservative party appears eager to temper the power of UK judges. The type of reforms listed in Buckland’s shopping list would certainly help the government to further their power but at the expense of citizen rights.

On the whole, the IRAL has proposed two reforms that would remove ‘Cart’ judgements and empower judges to suspend quashing orders. Despite these reforms, the Conservative party’s appetite for judicial change remains unsatisfied, and has looked to further suppress judicial power through ‘ouster clauses’. Despite the need for reform, the Conservatives party’s aim appears to be misguided and is more accurately described as a power grab. Hopefully, the judiciary will withstand this attack, however with public support declining with headlines like “enemies of the people” – how much longer can they last?

Report written by Luke Cuthbert

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