Proposed Changes to Judicial Review

What does the leaked document say?

According to reporting by the Guardian, the leaked Ministry of Justice paper proposes several reforms that critics say would make it more difficult to hold ministers accountable. One proposal concerns altering the “intensity of review” applied in different cases, which appears to target the criteria judges use when assessing judicial review claims.

Another proposal involves increasing the cost burden for claimants. This relates to standing and whether a claimant has “sufficient interest” in the matter. Raising costs could deter individuals and organisations from bringing claims.

The Ministry of Justice has not responded to enquiries about the leaked proposals.

Public Reaction

Human rights groups

Charlie Whelton of Liberty condemned the proposals as part of a wider effort to make the government “even less accountable to the public”.

Opposition politicians

Shadow Justice Secretary Steve Reed said the reforms reflected a belief that “the law only applies to the little people”.

Civil society organisations

Tracy Doig of Freedom from Torture emphasised the importance of judicial independence and warned against creating “a government above the law”.

Recent Reforms to Judicial Review

The Judicial Review and Courts Act 2022

The most recent legislative reform is the Judicial Review and Courts Act 2022, based on recommendations from the Independent Review of Administrative Law.

Section 1: Quashing orders

Section 1 introduced suspended quashing orders and prospective quashing orders. These allow courts to postpone the effect of quashing a decision or limit its retrospective impact.

Supporters argue this gives the government time to correct errors. Critics warn that limiting retrospective effects may deprive successful claimants of meaningful redress for harm suffered before the court’s decision.

Section 2: Upper Tribunal decisions

Section 2 reverses the judgment in R (Cart) v The Upper Tribunal. Decisions of the Upper Tribunal are no longer subject to judicial review.

Government Attitudes Toward Judicial Review

Government hostility toward judicial review has grown in recent years. In 2020, Boris Johnson criticised “lefty human rights lawyers”, and the Home Office published a video attacking “activist lawyers” after a deportation flight was halted.

Several high‑profile judicial review cases have frustrated the government, including:

• The High Court ruling that Parliament had to approve triggering Article 50.
• The Supreme Court ruling on employment tribunal fees, described by the Guardian as forcing a “humiliating overhaul”.
• The upcoming challenge to the legality of Priti Patel’s Rwanda deportation policy.

The 2019 Conservative Party Manifesto pledged to ensure judicial review “is not abused to conduct politics by another means”.

An expert panel was established to examine alleged misuse of judicial review. The Ministry of Justice later summarised the panel’s findings as concluding that courts were “moving beyond the remit of judicial review”, but this claim was criticised as misrepresenting the panel’s conclusions.

The government has also proposed replacing the Human Rights Act 1998 with a British Bill of Rights. Dominic Raab said this would “strengthen our UK tradition of freedom”, while critics such as Stephanie Boyce of the Law Society warned it reflected “a deepening of the government’s disregard for the checks and balances that underpin the rule of law”.

Potential Outcomes of the Proposed Changes

Standing and “sufficient interest”

To bring a judicial review claim, a claimant must have “sufficient interest” under section 31(3) of the Senior Courts Act 1981. The leading authority, the Fleet Street Casuals case, held that standing must be assessed within the “legal and factual context” of the case.

Increasing the cost burden may make it harder for NGOs to bring claims, as their members may not be directly affected. This could restrict challenges to government action even when no identifiable victim exists.

Rule of law concerns

In Walton v Scottish Ministers, the Supreme Court emphasised that courts have a constitutional role beyond resolving individual grievances. Similarly, in AXA General Insurance Ltd v HM Advocate, the court noted that a public authority can violate the rule of law without infringing individual rights.

Raising barriers to judicial review may therefore undermine the ability of courts to uphold the rule of law.

Lord Burnett, the Lord Chief Justice, warned in a speech that attacks on judicial independence “undermine the judiciary and the rule of law itself”.