What have Judicial Reviews ever done for us?

The Government has recently announced an inquiry into judicial review. Although the Chair of that Inquiry says it’s ‘impossible’ that judicial review will be abolished, we are all now a bit wary of emphatic promises from politicians. What is judicial review and why should you care? Fair Cop explains why.

Without judicial review (JR) Harry Miller would have had no remedy against Humberside police, who were found by the court to have acted akin to the Gestapo. JR is also the route taken by Keira Bell, the Safe Schools Alliance and Ann Sinnott to challenge unlawful state guidance and activities. It’s clearly been a vital tool in the armoury of those who seek to challenge the current state of madness — where law and policy are junked in favour of the claimed rights of one minority.

What is judicial review?

[Judicial Review] remains hugely important for individuals who need to hold the state to account
‘Public law’ is the body of law that governs the operation of public bodies, such as local authorities or the police. This contrasts with ‘private law’ which regulates activities between individuals.

A remedy in public law is judicial review. You can apply to the court to ask that a public body is forced to do or to stop doing something because they are acting unlawfully, by being unreasonable or irrational.

It is defined under the Civil Procedure Rule 54.1(2)(a) as a claim to review the lawfulness of:

  • an enactment; or
  • a decision, action or failure to act in relation to the exercise of a public function.

There is a two-stage process in applying for JR. At the first stage, you will seek the court’s permission to make the application. Many applications will fall at this hurdle. If you get permission your application then goes before a judge who will hear arguments and decide what order, if any, to make.

There are three ‘grounds’ for judicial review and each may overlap. The basic question to be answered is – was the act or failure to act so irrational or unreasonable as to be unlawful?

  • Illegality or unlawfulness – a failure to act within the law. Did the decision-maker understand the law they were applying? Did the decision-making apply the correct law? Did the decision-maker fail to take into account relevant issues?
  • Irrationality – did the decision-maker reach a decision so unreasonable that no reasonable decision-maker could have made the same decision?
  • Procedural impropriety – did the decision-maker act fairly? Was the decision-maker biased?

There are significant limitations to JR as a method of ‘righting wrongs’.

It’s a remedy of last resort – you will be expected to have tried other avenues to resolve your problems first and your application will not succeed if the court thinks you have failed to do this.

Any recommendations to limit or abolish JR will have serious consequences for all of us
The time limits for making an application are very short and very strict – see CPR Part 54.5(1). You must make your application for permission to apply for judicial review promptly and in any event not later than 3 months after the grounds upon which the claim is based first arose.

JR is also not about the merits of a decision but a way but to check that the decision-making process was fair. So even if you are successful in your application for JR this is not a guarantee that the public body will ultimately make a different decision in your case – only that the court will tell them they need to think again and carry out the process fairly.

But in spite of its limitations, JR remains hugely important for individuals who need to hold the state to account. If you succeed in your application for JR, you can get a declaration that a public body has acted unlawfully or an injunction to stop them from acting unlawfully. You can also include a claim for damages – see CPR 54.3(2).

What are the Government proposals about JR?

The Government has set up the Independent Review of Administrative Law, (IRAL) chaired by former Tory justice minister Lord Faulks QC. The Government describes the review in this way:

The IRAL was established following the Government’s manifesto commitment to guarantee that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.

The panel will consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.

The review will examine a range of data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is justified.

The work forms part of the Lord Chancellor’s duty to defend our world-class and independent courts and judiciary that lie at the heart of British justice and the rule of law.

On September 10th 2020, The Times described the review in this way:

Curbs to limit judges making “political” rulings will be considered by an independent inquiry launched amid wide concerns that the courts are thwarting government business, The Times has learnt.

Lord Faulks, QC… insisted that the right to challenge government decisions — known as judicial review — would not be “abolished”. But he said that it was reasonable to ask whether judges were increasingly venturing into policy areas that should be for parliament to decide.

It is of course very important that we maintain the ‘separation of powers’ where the political authority of the state is divided into legislative, executive and judicial powers. To most effectively promote liberty, these three powers must be separate and acting independently. So Judges may not ‘make’ law – they apply it. But politicians cannot claim to be exempt from the law.

The Times goes on to say:

Politicians have become increasingly irritated at finding their policies challenged and ruled unlawful in the courts. Last week Priti Patel, the home secretary, said that efforts to remove migrants arriving in the UK in small boats were being “frustrated by activist lawyers”.

The use of that phrase was condemned by many groups including the Law Society and Bar Council. Lawyers who uphold the law are not ‘activist lawyers’ – they are doing their job.

There seems more than a whiff here of irritation from politicians that their decisions are being held up to scrutiny.

The Times further notes:

As a justice minister between 2014 and 2016 under Chris Grayling, at the time the lord chancellor, Faulks steered through parliament moves to curb judicial review. He insisted, however, that he was broadly “in favour” of the legal remedy. He says now: “It is reasonable to ask: has judicial review gone too far? The only question is: where are the boundary lines? It is quite impossible that we will recommend the abolition of judicial review as some suggest.”

IRAL has issued a ‘call for evidence’ this week. The Law Society Gazette noted on 8th September that the Public Law Project has set up an expert group to hold roundtable meetings to discuss the terms, what reform might look like in each area and the role of evidence in the reform process.

We think one of the comments on the Law Society Gazette article sums it up neatly:

When regimes become repressive/regressive, they seek to remove the ability to challenge government action. Given the number of times the current government and its predecessors over the last ten years has been caught flat footed this should not be entirely surprising. The question is what, if anything, as lawyers we should do about it? “Activism” should not be a dirty word.

We need to keep a close eye on this. Any recommendations to limit or abolish JR will have serious consequences for all of us, not just the lawyers. The call for evidence is open until 19th October.

We will be reminding them of Harry Miller’s case.

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