On 31 July 2020, the government announced that it had launched an independent review of the judicial review process to examine the need for any potential reforms. The review 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’.
What is judicial review?
Judicial review is the process of challenging decisions made by public bodies. Challenges can succeed if the challenger can show that the public body’s decision-making process was illegal, irrational or unfair.
Judicial review forms part of the UK’s tripartite constitutional structure of the separation of powers: the executive (government), legislature (parliament) and judiciary work together in a system of checks and balances, scrutinising each other to ensure that the other branches are acting appropriately and maintaining the balance of power between the branches. Judicial review enables the judiciary to evaluate decisions taken by the executive and is designed to enable public decision-making processes to be monitored with clarity and objectivity.
What will the independent review consider?
The review will consider four issues:
whether the terms of judicial review should be written into law;
whether certain executive decisions should be decided by judges;
which grounds and remedies should be available in claims brought against the government; and
any further procedural reforms to judicial review.
The terms of reference for the review can be found here.
What has prompted the review?
The UK has an unwritten constitution and relies on the executive, legislature and judiciary to keep each other in check. In recent years, however, the parameters of this arrangement have been stretched to almost unprecedented extents and there have been murmurs in support of codifying the boundaries between the three branches, perhaps even by constructing a written constitution. We considered that question here.
Two of the most testing items on the government’s constitutional agenda in recent years have been COVID-19 and Brexit. The government has already faced a number of challenges to the measures it has imposed in response to the pandemic, ranging from PPE provision to school closures. As for Brexit, the obvious examples are Gina Miller’s two successful judicial review applications ([2017] UKSC 5 and [2019] UKSC 41). Both of these challenges were constitutionally complex, involving all three branches of state, and the ultimate decisions in both were taken by the judiciary.
It would not therefore be unreasonable to speculate that the Brexit challenges have prompted items one and two of the independent review in that, on both occasions, the government’s view is likely to have been that the power was tipped too far in favour of the judiciary and needs to be recalibrated. Indeed, the Lord Chancellor has hinted strongly at this, saying that the review aims to ensure that the judicial review process:
‘is not abused or used to conduct politics by another means’.
Sufficiency of the review panel?
The proposals now under consideration have the potential, if implemented, to bring about a significant constitutional shift, alter the customary checks and balances from which we have long benefitted and weaken the Rule of Law. It seems rash for the government to contemplate any such reform without proper consultation.
Next steps
BDB Pitmans stands ready to help its clients make representations as part of any consultation on these issues which might take place in due course. In the meantime, though, please do not hesitate to get in touch with Matthew Smith if you would like to discuss the proposed changes, or the judicial review process, more generally.
'...The UK has an unwritten constitution and relies on the executive, legislature and judiciary to keep each other in check...'
