By examining judicial review, the government seeks to enhance its own power and diminish yours

A vital democratic safeguard is under threat

December 04, 2020
Judicial review has helped check abuses of power in asylum cases . Photo; JANINE WIEDEL PHOTOLIBRARY/ALAMY STOCK PHOTO
Judicial review has helped check abuses of power in asylum cases . Photo; JANINE WIEDEL PHOTOLIBRARY/ALAMY STOCK PHOTO

Judicial review has helped check abuses of power in asylum cases. Photo: JANINE WIEDEL PHOTOLIBRARY/ALAMY STOCK PHOTO

The rule of law is a simple but powerful proposition. As articulated by the former senior law lord, Lord Bingham, it means that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of the laws.” This is an all-encompassing, supreme principle with which it is difficult to argue. Yet Boris Johnson’s government has consistently held the rule of law in contempt. The Prime Minister has not only undermined it with various pronouncements and policies, but he has also built an entire agenda around stifling the institutions that uphold it.

The government’s “Independent” Review of Administrative Law, chaired by Edward Faulks, will report before Christmas on potential reforms to judicial review, the process by which organisations and members of the public can challenge the lawfulness of government decisions. On the surface, it will look at technical aspects— the formal scope focuses on potential codification of grounds, the parameters of judicial authority, and procedural changes—but its political purpose is sweeping and dangerous. Faulks was highly vocal in his criticism of the judiciary in the aftermath of the Supreme Court’s 2019 judgment declaring the decision to prorogue parliament unlawful. There have been briefings from Johnson’s Downing Street of an intention to “get the judges sorted.” There can be little doubt that this review is part of an attempt to hoard power in No 10 and weaken systems that hold the executive to account.

This should concern us all. Judicial review is a necessary democratic function, empowering individuals and the people as a whole, while safeguarding the sovereignty of parliament. Ultimately, judicial review forces the government to be accountable and responsive to its citizens for the decisions it takes. Any brief assessment of judicial review in our courts reveals a stark disconnect between the government’s radical agenda to constrain courts in the name of democracy, and the reality of this key legal right.

Firstly, judicial review is not a tool for high politics, but a practical means by which many of the most vulnerable in our society are given a voice. Research shows that there is a correlation between social deprivation levels and the likelihood of bringing judicial review, because the action is so often a consequence of decisions made by public bodies relating to issues such as deportation, mental health, loss of custody or homelessness. On a broader level, judicial review has supported gay people to uphold equal rights and offered checks on abuses by the Home Office in asylum claims. It is irresponsible, and plain wrong, to paint this constitutional protection as the preserve of the powerful.

Secondly, judicial review relates to decisions from all public bodies and emanations of the state. The government appears to have taken offence at certain high-profile judgments, and ordered this review looking at means of restriction through codifying—and thereby narrowing— the grounds on which one can bring a claim. This ignores the fact that many judicial review cases are brought against, for example, local authorities. Unless it is a pointless window-dressing exercise, any legislation that attempts to codify the vast array of claims and factual contexts covered by judicial review will lead to absurdities and inconsistencies.

Thirdly, there is little evidence to support a picture of an activist judiciary stifling the government’s will. In 2019, the courts saw the lowest number of new judicial review applications since 2000. Permission was only granted in 20 per cent of these cases. Overall, the successful rate of judicial review was under 10 per cent. Any argument that there is a “floodgate of litigation” that needs confronting therefore adds to the sense that the agenda is wholly political, with the aim of undermining scrutiny and gathering more power in Downing Street.

Judicial review is a legal function that often supports the most vulnerable. However, it is increasingly difficult for an individual to challenge a government decision, absent of the support from a campaigning organisation or trade association, without facing the threat of bankruptcy. Perhaps this is why judicial review has been tainted as a political act, rather than a legal one. Too often people are required to work with larger bodies and groups, often with separate political agendas, simply to assert their rights.

But this is not a failure of judicial review but the funding arrangements for judicial review. As Tom Hickman, the renowned public law barrister, has powerfully set out, bringing a claim with a two-day final hearing may cost a claimant between £80,000 and £200,000 if they are unsuccessful and a costs order is made against them. The scarcity in legal aid is well known—the number of litigants-in-person representing themselves has doubled since 2010. Any reassessment of judicial review should look at this injustice and consider alternatives that remain proportionate and allow claims with real prospects of success, or which raise important issues, to progress. Access to justice is a key cornerstone of our democratic settlement.

The importance of protecting judicial review cannot be overstated. In a country without a written constitution, the freedom to confront executive decisions between democratic elections is essential and should not be curtailed. There is no evidence to suggest any such change is required. In the words of former Supreme Court justice John Dyson: “there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.” A responsible government would seek to consolidate and protect this democratic legal right, not constrain and undermine it.


This article features in Prospect's new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation