The government is looking at judicial review

10th August 2020

What should we make of the government’s announcement of “independent panel to look at judicial review”?

By way of background: judicial review is the general name for how the courts in England and Wales consider the lawfulness of government decision-making and rule-making.

If a government decision or rule has not been made within the legal powers available, or has otherwise been made improperly, the High Court in London can quash that decision or rule.

Governments do not like being told ‘no’ by courts.


The announcement and the Terms of Reference

The announcement is a small item on the government website, which in turn links to a one-and-a-half page pdf with the grand title of Terms of Reference for the Independent Review Of Administrative Law.

This title and the Notes helpfully take up the majority of the one-and-a-half pages.

The substance of the Terms of Reference (such as it is) is in four numbered paragraphs, and these four paragraphs have been put in bold – perhaps to make them look more impressive.



A first thought about this review is that you would think that the Ministry of Justice would have more important things to do.

The ongoing coronavirus emergency means the criminal justice system is beset by backlogs and delays, and the prison system is more dangerous than ever.

But at this time senior ministers and officials at the Ministry of Justice wish to devote their scarce managerial time and resources to this matter.


Lack of substance

A second thought is that the announcement and the Terms of Reference are, well, rather flimsy.

The four numbered paragraphs, even when supplemented by the Notes and said in that slow ‘voiceover man’ way as all passages in bold should be, are as general as the author(s) of the document could get away with, short of saying nothing of substance at all.

Even paragraph 4, which is perhaps the most important, is no more than a brief list of discussion points.

The document has an improvised and rushed air to it – the Notes in particular seem to be a late attempt to add some substance.

All this said, there is stuff here which is – or may become – concerning.


Paragraph one – codification

The first paragraph is, as a lawyer would say in court, an old chestnut: should judicial review be placed on a statutory footing?

This is an examination essay question of the ages.

And there is no quick or neat way this review, or anyone else, can place judicial review on an entirely statutory basis even if it wanted to do so.

This is not to say there are not already detailed statutory rules.

Judicial review is already heavily regulated by legislation: by the Senior Courts Act and by the (statutory) Civil Procedure Rules.

But the ultimate basis of judicial review is not contained within any Act of Parliament, as it derives from the very jurisdiction of the court itself – and some would say that the supervisory jurisdiction of the High Court is logically prior to, and distinct from, the legislative supremacy of parliament.

To somehow convert this source of law into a statute would no doubt require complex and sophisticated legislation, if it can be done at all – and, unless there is a particular reason to do so, there seems not a lot of point in doing so.

And, there is the ‘hole-in-my-bucket’ problem of how the courts would police compliance with any such new constitutional statute if its power is entirely to be derived from that statute.

Some things are perhaps better left as student essay questions.


Paragraphs 2 and 3 – justiciability 

Paragraphs 2 and 3 are impressive in that somebody has somehow managed to make two paragraphs out of one point.

That point is justiciability.

This is about what sort of issues are questions for the court as opposed to, say, Parliament, the government, or the electorate.

The problem here, as with paragraph 1, is circularity.

A question for the court is always a legal one – whether an action (or inaction) is legal or not.

And what sort of issues are legal ones?

The ones that are decided by a court.

If there is to be some statutory definition of what questions are justiciable, then all that may happen is that the legal battleground shifts to litigation about whether that new definition applies.

Courts, contrary to media representations, are already reluctant to the point of unwilling to decide political questions: for example, all the Miller litigation did was ensure that parliament decided certain issues rather than the executive.

Those who sought to use the courts to stop Brexit not only failed but did not even come close to getting any judicial reversal of that political decision.

What we do often get is media and political misinformation about what the courts are doing and not doing.

And the cure for such misinformation about the law is not to change the law.


Paragraph 4 – collateral attacks

Paragraph 4 is where this Review may make some difference.

The ultimate basis of judicial review cannot be easily changed, and nor can the need for a court to decide whether a question is a legal one or not.

But – like a participant in ‘Wacky Races’ throwing devices out a car window to snare the car behind – the government can promote rules and procedures that can make access to the courts more difficult.

Here, however, the government probably does not need an independent review to do this: this has pretty much been government policy since the Blair years, with the worst most recent attack on the easy availability of judicial review coming under the Coalition government (and promoted by a Liberal Democrat minister).

You will see unlike paragraphs 2 and 3, where one point is stretched into two, that paragraph 4 has six points – each one of which is a potential pressure point for limiting the flow of justice, just like the body has pressure points to limit the supply of blood or oxygen.

What the government here is seeking to do is reform the practice of judicial review so that it almost impossible to obtain it as a practical remedy.


Towards a report and beyond

This review has the whiff of ‘something must be done’ – the government and its advisors do not like judges saying ‘no’ and so something must be done to stop the judges saying ‘no’.

One way judges would be prevented from quashing decisions and rules is for those decisions and rules to made better in the first place.

Any decision or rule in respect of public policy can probably be made by the government through parliament, as long as government and parliament make the decision or rule properly.

The courts can only intervene when there is illegality.

The problem in this age of Brexit and coronavirus is that the government does not want to go through the proper law-making process – it wants to use wide powers, either in emergency or Brexit legislation – and to not have any parliamentary or other check on that power.

This is the executive power project.

Perhaps this review is a clever wheeze by some wise official to delay or deflect the attack on judicial review – by the time the panel reports, things may have ‘moved on’.

But this is probably wishful thinking.

The impulse of some now in and around government for executive power for its own sake will still be there.

And they will not rest until they have done as much as they can to remove any constitutional check or balance to their wish to have, in effect, government by decree.


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12 thoughts on “The government is looking at judicial review”

  1. There is a theme here. In highly partisan but democratic politucal systems the resort is to executive order. Trump, Oban, Johnson. If you have demonized your opponents then it becomes nonsensical to seek a compromise. Therefore the power of the executive is strengthened and thus the courts are brought into play more often….and so their powers are questioned.

    The politicization of the Courts in America seem to be as much a failure of politics as anything more structural. I do hope it doesn’t occur here.

  2. If we work on the premise that we have an independent judiciary, then an “independent panel to look at judicial review” is a contradiction in terms. Any interference in the courts by the government would by definition be tampering with that independence.

  3. What can be done to oppose a project designed to make access to judicial review even more difficult? Would this be lawful or would it be itself subject to judicial review for being an abuse of executive power? The recent actions of the GoodLaw project show how important judicial review is. Without it excess and abuse of executive power will go entirely unpunished. The recent packing of the Lords with critics of the courts’power is very concerning. And when/if it is achieved, which government will put in place a new statute to restrict its power?
    Who are those tasked with conducting the review?

    1. In R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, 4 of the 7 justices held that judicial review is a fundamental corollary of the rule of law, and there is a strong presumption that Parliament does not legislate contrary to the rule of law. 3 of those 4 justices went further, saying that in fact there is “a strong case for holding that binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court”. If that is right, we might see the first instance of the courts effectively striking down an Act of Parliament (on grounds other than being contrary to EU law).

      Similarly, in Jackson v Attorney-General [2005] UKHL 56, Lord Steyn said that “supremacy of Parliament is … a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

      1. Thank you for this interesting reply. So we may be headed towards a dangerous showdown between the courts and the Executive/Parliament. The courts will have to act carefully, they do not wish to end up with a system like in the US of political appointees to the SC.

  4. Isn’t the problem that because we don’t have a written constitution guaranteeing checks and balances, it is open to an unscrupulous executive with a large parliamentary majority to drive a coach and horses through our unwritten constitution? At least, that’s what it looks like. An executive seeking to govern by fiat, passing legislation full of holes. The question is, what to do about it?

  5. The fact that the panel is to be chaired by Lord Faulks seems incompatible with its supposed independence. Although he currently sits as a cross-bench peer, he was formerly a Conservative and was Minister for Civil Justice under the Coalition Government between 2013 and 2016. In fairness to him, he did resign from office as the result of Theresa May’s decision to appoint the non-lawyer Liz Truss as Lord Chancellor.

  6. I’m not a lawyer, just an ex councillor with every reason to be worried about the way this ‘campaigning’ short-termist government is exploiting our unwritten constitution alongside its disrespect for parliamentary scrutiny and indeed lawmaking. The use of the appeal and judicial review processes are fundamental, at both local and national levels, but is this understood by candidates? The way the ruling party members ‘elected’ our current PM is indicative of the lack of proper scrutiny of candidates or their understanding of ‘democracy’ in all its senses. Government does not require strategy with such a majority. I believe we need a strategy for open primaries, and maybe basic PPE and ethics training for all parliamentary candidates would not be amiss!

  7. But the reality is this: no one has yet advanced any rational reason on how a government can win in the High Court by three to nil and then lose in the Supreme Court by twelve to nil. To go from one extreme to the other. How incompetent the first three judges must have been to conclude “In our view, the decision of the prime minister to advise Her Majesty the Queen to prorogue parliament is not justiciable in Her Majesty’s courts.”

    When you consider this and the behaviour of Supreme Court judge Lady Hale in Malaysia, or Lord Neuberger’s wife anti-Brexit tweets, or judges with strong links to EU institution, what’s the old adage “Not only must Justice be done; it must also be seen to be done.” When you bring it all together any rational and dispassionate person would conclude there is a bias.

    There’s only one explanation: the Supreme Court has become political. It acted in a partisan fashion as if it were the legal wing of Remain. This is why it must be reformed.

    The unconstitutionality of the Supreme Court’s prorogation judgment is laid out by Professor J. Finnis:

    The Supreme Court Against the People (Constitutional Law Group):

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