Long Read: How much longer are our constitutional rights safe? A discussion of the review into judicial review

Article by Catherine Allen

It is a well-known political tactic to use a bigger event that is currently encapsulating the public’s attention as cover to release potentially harmful or embarrassing information. This is exactly the method that the current Conservative government is using in their latest project: mounting an inquiry into judicial review while the public is still concerned about the Coronavirus pandemic. And if not entertained enough by that there is, as has been for the previous four years, the issue of Brexit and the looming end of the transition period. However, such a review should come as no surprise. It is clear that there has been mounting tension between the judiciary and the executive in recent years with the successive government’s being frustrated by what they see as excessive and expanding judicial interference in politics- the peak of such being the Miller cases. With Miller preventing the executive from individually giving notice of withdrawal to the EU under Article 50, holding that Parliamentary consent was required. And Miller II/Cherry finding that: first, the executive’s exercising of the prerogative power of prorogation was a justiciable issue for the Supreme Court and second, that the executives’ prorogation of Parliament was unlawful in the circumstances. Following two landmark cases in which the Supreme court curtailed the executive’s power (and which were slightly embarrassing from the perspective of the government), retaliation was inevitable and this is it. But as was said before it was foreseeable- for example on page 48 of the Conservative manifesto 2019 the declaration was made that “after Brexit we also need to look at the broader aspects of our constitution: the relationship between the government, parliament and the courts”.

Judicial review is a way in which the lawfulness of a public bodies’ decision or actions can be assessed. It is a separate idea to the notion of an appeal: appeals are founded upon a claimant’s concern that the court did not reach the ‘right’ decision after considering the facts, evidence or law in a case. Whereas, a review can be undertaken towards all public authorities and it is determining whether the way in which a decision was made was lawful. It is a strong legal method of holding political bodies to account for the decisions they make. The numerous common law grounds of judicial review ensure amongst other things that:

• That the public body actually had the power to make the decision in the first place;
• Bodies have not acted ultra vires (for example, that ministers have not acted beyond the scope of the discretionary power conferred to them in a statute);
• That the authority has taken into account relevant information (also including the necessity to disregard irrelevant information);
• Procedural fairness has been upheld (through ensuring that the body has not been biased or been seen to be biased in the decision-making process and a fair hearing has been ensured);
• That an irrational or unreasonable decision has not been come to.
• The substantive decision that the public body made was one that would be considered reasonable.

Judicial review is constitutionally fundamental – it enforces the rule of law, separation of powers and works to protect citizens against the power of the state. often being of aid to minorities and those most vulnerable in society as many of the reviews deal with prison issues, asylum and immigration. Lord Chancellor Robert Buckland QC MP sums up its importance concisely in two quotations: “Judicial review will always be an essential part of our democratic constitution- protecting citizens from an overbearing state” and as a “precious check on government power”. It is particularly important within the UK’s constitutional organisation as it counterbalances Parliamentary sovereignty, which is arguably, owing to the lack of separation between the executive and legislative branches, governmental sovereignty.

The panel (headed by Lord Faulkner QC) is set to address the question as to whether reform of judicial review is justified. They will specifically consider:

• Whether the grounds of judicial review should be codified.
• What issues should be deemed to be justiciable.
• The available grounds of judicial review and available remedies.
• Further procedural reforms such as timings, the appeal process, costs and funding.

What is set out above reflects the “official” government proposal as set out on their webpage. However, it is clear that there is an underlying motive in the government proposing such a reform which stems from the recent shift to a more legal constitution and the executive feeling that its power is becoming more restricted-being held to account for its actions to a greater extent recently- while that of the judiciary grows. The government is looking to extend its own powers, reduce that of the judiciary and ensure that there is less scrutiny over its actions and decisions. Or, as the government likes to phrase it, “[a] need for effective and efficient government”.

Taking into account the underlying motive the actual agenda of the government is easily filled in:

• Codifying the grounds of judicial review but in the process of doing so narrowing down or completely removing the scope of common law grounds.
• Restricting the scope of what is deemed to be justiciable thereby decreasing the extent to which the courts can work to hold public authorities (specifically the executive) to account.
• Procedural alterations that reduce the number of reviews being brought- i.e. increasing the costs of mounting a review, not allowing review to be raised as a defence in other proceedings, limiting the ability to appeal in review cases and reducing who can be given ‘standing’ in a judicial review case.

Although this is not necessarily the outcome that will be reached with it first having to be decided by the panel as to whether reform of judicial review is justifiable in the first place, it is clear that current governmental intentions produce an affront to key constitutional principles of the rule of law and the separation of powers. And although efficient political decision making and effective governance are important, they should not be pursued to the extent that accountability, good governance and fundamental constitutional principles start to become undermined.

If it was the case that the radical hoped-for reforms were implemented there would be lesser scrutiny of executive actions and decisions. Meaning a lack of legal restriction upon executive power which could lead Parliament (separation of powers issue) and individuals with a lack of protection. This is especially concerning with the Conservative’s hard-line attitude towards prisoners and immigrants as it may leave such societal groups in a vulnerable position. Moreover, the procedural reforms would pose an affront to the fundamental rule of law ideas such as access to court (increasing costs of mounting a review).

If the discussion so far is not harrowing enough, it is unlikely that this is the full extent of the government’s intentions. Next in the firing line is sure to be the Human Rights Act. The Conservative party promised a ‘Constitution, Democracy and Rights’ – although such a commission has not been brought into existence, the review into judicial review is the first attempt at bringing the desired constitutional reform and increased politicisation by the government. And this is likely to be followed by a similar action towards human rights with the manifesto promising to ‘update the Human Rights Act’ to promote ‘national security and an effective government’ and a new ‘British Bill of Rights’ being previously suggested.

The Human Rights Act gives domestic effect to the European Convention of Human Rights to which the UK was a signatory in 1950. Up until the enactment of the HRA, as a result of the dualist system, although the UK was bound to the ECHR convention rights in international law they were not in domestic law. Following the HRA individuals could now hold public authorities accountable for an infringement into convention rights before national courts, instead of relying upon the Strasbourg court or the common law which was at this point framed more in terms of protecting civil liberties rather than individual rights. The HRA has been regarded as the “cornerstone of the new constitution” (Bangdor) which shifted the UK towards a more legal constitution. The judiciary gained the ability to interpret legislation “so far as it is possible” (which gives a very wide remit) to be compatible with convention rights under s3 as well as being able to make a declaration of incompatibility under s4 if the former approach cannot be achieved- thereby pressurising the changing or removing of the piece of legislation.

The HRA is another way to legally hold political institutions, especially the executive, to account and allow the protection of citizen’s rights preventing unjust intrusion by an overbearing state. However, it has been considered by many governments as annoying, especially regarding the ‘war on terror’ as well as regarding their treatment of prisoners and asylum seekers. Furthermore, it has been deemed to be an affront to Parliamentary sovereignty. Mark Elliott in his ‘Public law for everyone’ writings highlights that this view is shared by Lord Faulks QC (yes, the person chairing the panel reviewing judicial review) who has previously stated amongst other things that there needs to be “full fat” reform of human rights and that the UK should “leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and Parliament to protect human rights”. This would be an extremely dangerous move- not only does removing the HRA and no longer being a signatory to the ECHR reduce the strength of the judiciary in the protection of rights in itself but coupling this with the reduction in the scope of judicial review will result in overbearing executive power.

It is therefore advised that you pay close attention to the findings of the Judicial Review Panel as to whether reform is needed and any further ideas by the government that propose to “reform” the UK’s constitution to make governance more “efficient”. Although much of what has been discussed is speculative, it should be recognised as a real threat that could potentially materialise and create radical constitutional change and threaten the fundamental rule of law, separation of powers and human rights issues.