Troubling implications of JR reform laid bare by recent High Court challenges

The High Court ruling that the government acted unlawfully in relation to COVID-19 contracts is one of a series of cases which exposes the troubling implications of the government’s proposed far-reaching reform of judicial review.

Mr Justice Chamberlain found that the government broke the law in failing to publish details of contracts awarded for the procurement of PPE and other services within the 30 day timeframe required by legislation.

The judicial review brought by the Good Law Project (GLP), a not-for-profit organisation, is one of a series of actions brought in relation to the government’s response to the pandemic.

In a separate challenge, the GLP has sought to challenge the government’s decision to award £840,000 worth of contracts to Public First without a tender process. The small polling company was selected by the Prime Minister’s former advisor Dominic Cummings, who has close links with its owners. In his witness statement, Mr Cummings dismissed GLP’s claim of apparent bias, stating:

‘Obviously I did not request Public First be brought in because they were my friends…The fact that I knew the key Public First people was a bonus, not a problem, as in such a high-pressure environment trust is very important, as well as technical competence’.

Meanwhile the FDA Union, which represents civil servants, has also brought an action challenging the decision of Boris Johnson to stand by the Home Secretary, Priti Patel, after an investigation by his adviser on standards found she had breached the ministerial code in her behaviour towards staff.

The findings of Sir Alex Allan, who investigated the Home Secretary’s conduct, would by convention necessitate the Home Secretary’s resignation. Instead Sir Allan resigned after his conclusions were overruled by Johnson.

It is perhaps striking that these cases are making their way through the courts at the same time as the government is apparently pressing ahead in an effort to overhaul the powers of judges to hold the executive to account.

In July 2020, the government launched the Independent Review of Administrative Law to consider options for the reform of judicial review. In announcing the review, chaired by Lord Faulks, it promised to rid the process of ‘abuse and delay’.

The terms of reference of the review lend many to suspect that the government is intent on narrowing the courts’ powers. Changes might include: the narrowing of the available grounds of judicial review and codifying them in statute; limiting the remedies available in relation to certain of those grounds; reducing the extent of government’s duties of disclosure and candour in JR cases; removing the ability of pressure groups to bring such challenges in the public interest; and making changes to the associated costs regime which could make it more difficult for those without significant means to bring challenges.

Critics argue the proposed reform is a thinly-veiled attempt by the government to remove a valuable check on its power in the wake of the court’s blocking of the attempted prorogation of parliament. In its response to the review, the Law Society questioned the underlying premise for the review stating:

‘the evidence shows [judicial review] is working well and achieving its purpose.’

It is understood that the findings of Lord Faulks have been submitted to the Ministry of Justice. A timeline for the government’s response has not been published.

BDB Pitmans’ response to the review can be found here.