What has happened to the government’s fundamental attack on judicial review?

21st July 2021

I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.

But I cannot, because they have not.

At least not in the bill as originally published.

The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.

One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.

The latter has the strange quality in a government proposal of actually being a good idea.


For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).

But they too saw the proposals as mild and uncontroversial.

Lord Anderson QC, an independent peer:

Lord Pannick QC, via my near namesake the president of the law society:

And via Joshua Rozenburg:


We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.

And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.

There is also the detail about fettering judges’ discretion in respect of the new quashing orders.

But all this said: this is a significant (and welcome) law and policy anti-climax.

This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.

Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.

But as this blog previously described, the government did not get the consultation response it was looking for.

Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.


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6 thoughts on “What has happened to the government’s fundamental attack on judicial review?”

  1. Cynical counterpoint – If HMG don’t actually change very much at all, they can reserve the right to continue waging their culture war on a Rule Of Law front, the idea being that those most receptive to the arguments made can be relied upon not to think about the contradiction present

  2. I’ve seen it suggested that the anti-Cart provisions in clause 2 – taking away any right to judicial review of a decision of the Upper Tribunal to refuse permission to appeal, where there is no right to appeal that decision – could be used as a template for future plans to oust the jurisdiction of the courts to judicially review other kinds of decision. Cart coming before a stalking horse, if you like.

    The clause plainly says that the Upper Tribunal’s decision to refuse permission to appeal is final, and not liable to be questioned or set aside in any other court, even if the Upper Tribunal has made errors; and that the High Court (or Court of Session) cannot exercise its supervisory jurisdiction.

    But then sub-clause 4 carves out situations where the Upper Tribunal is said to have acted in “bad faith”, or in “fundamental breach of the principles of natural justice”.

    So you can’t bring a judicial review for a regular small- or medium-sized breach of natural justice, only a super-sized fundamental one?

    And then there is the defensive sub-clause 6, trying to stop the clause itself being used as a ground for challenge. Ousting a challenge to the ouster.

    But could you challenge that reflexive meta-ouster?

    This feels like a dog that barked but then didn’t bite. Perhaps it never will.

  3. If this government has decided to “pause” what seems to be a sustained attack on our human rights and legal protections then the likely reason is timing.

    Covid infections, hospitalisations and even deaths are rising so fast Johnson may not be able to avoid the political suicide of a new lockdown in a fortnight’s time. Then there’s Brexit (the Northern Ireland Protocol dispute, supermarket supply problems, etc). And poll ratings showing a greater degree of dissatisfaction with Johnson, Sunak and the Tory party generally).

    “Slowly, slowly catchy monkey” would make political sense for the government right now.

  4. I assume there are a fair number of legal professionals, who are civil servants, involved in drafting bills?

    Could it be that they recognised the important criticisms of the initial government proposals and were able to make a case for what ended up being published?

    Do draft bills covering other areas (eg engineering, medicine, arts,…) benefit similarly from civil servant professionals in those respective areas?

    Let alone MPs coming from non-legal backgrounds?

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