The Executive vs The Judiciary: A Battle for Review
In response to the recent commission of an independent review on the judicial review process I have articulated my thoughts below. Reform has been spoken of for a while by the Conservative Party but constitutionally significant and dangerous changes may be on the horizon.
Photo ©David Levenson / Alamy
What is judicial review?
The British State consists of three bodies. The Government, consisting of the Prime Minister and the Cabinet (the Executive), Parliament (the Legislature) and the courts (the Judiciary). Judicial review is a type of court proceeding in which judges review the lawfulness of a decision or action made by a public body. In the UK, the courts lack the full strike down power held by the judicial review process in the US, which is able to make legislation null and void. Nevertheless, instances of illegality, irrationality or procedural impropriety in public body decision making can be challenged through the judicial review process, making it one of the key checks and balances on the power of the Executive, exercised by the Judiciary.
What is happening to judicial review?
In response to the two prolific defeats in the Miller cases on Brexit, following Lord Sumption’s “Law’s Expanding Empire” rhetoric, and in line with their Manifesto commitments, the Government has formed an independent panel to assess the current position of judicial review. The aforementioned political context gives this review the underlying sense that the Government is seeking to cripple the judicial review process, rendering it far more difficult to bring judicial review claims against public authorities in the future. In the words of the Leader of the Liberal Democrats, Ed Davey, “These Tory attacks on our courts, judicial review and the Human Rights Act are all designed to weaken ordinary people and enable ministers to act with impunity”.
The terms of reference are broad and, while the expertise of the panel are not in dispute, there is potential for changes to the following off the back of their recommendations:
Changes may be made to the sources of judicial review, much of which currently lies unwritten in the common law. While codification can offer more clarity and certainty there would be a very real risk that the courts would be unable to adapt the law to the zeitgeist and changing contexts as it is currently able to do under the common law foundation.
For instance, as public use of private data and data rights become more prolific and significant it would be dangerous for such public authority conduct and potential abuse to fall outside the remit of judicial review. Earlier this month the Court of Appeal ruled that police use of facial technology breaches privacy rights (R (Bridges) v-Chief Constable of South Wales Police & Ors), highlighting the fact that some of the most significant powers of the next decade are only just emerging and are already being misused.
Furthermore it is likely that any codification carried out on recommendations from the independent review by the current Government would seek to frustrate the accessibility to judicial review for immigration and asylum policy matters. Other human and civil rights currently open to judicial review under the Human Rights Act 1998 would likely meet the same fate. It would be illogical and dangerous to curtail the judicial review process’ ability to ensure public decisions on such matters are made legally, justly and within constitutionally prescribed limits. Ultimately individual rights would be afforded lesser protection.
Changes to the law on justiciability
Justiciability is the question of whether the courts are in a position to hear and rule on any particular issue; that is whether or not there is a legal question to be defined within the scope of the courts. This is a question that naturally falls to the legal experts that make up the benches of our Judiciary. The panel may pave the way to the Government wielding more power and influence here. The potential for this to be taken out of the Judiciary and left for political branches of the State to decide is not only counterintuitive with respect to the quality of such decision making but would also look strikingly like a direct retaliation against the courts by the executive in response to its defeat in both Miller cases.
Furthermore codifying grounds of justiciability would pose the risk of the law stagnating and becoming inapplicable to changing contexts as mentioned above.
Why is judicial review important?
The need for the existence of judicial review I feel is best articulated by Sir John Laws who in his article ‘Law and Democracy’ writes, ultimate sovereignty lies “not with those who wield governmental power, but in the conditions under which they are permitted to do so”. Judicial review is a process of paramount importance for ensuring this distinction is protected.
In its current, judge lead and common law based form, judicial review allows the courts to ensure good government by preventing decisions being made in a way surmounting to bad governance. This allows the judiciary to, in the words of the great, late Ruth Bader Ginsburg, interpret the law “to keep it in tune with the people law exists to serve”, rather than apply contextually historic legal rules to modern life.
Without judicial review we would be at risk of sliding back to the autocratic rule of man with modern conceptions of rights and justice unprotected and discarded. The President of the Law Society of England and Wales agrees saying “Judicial review is a vital part of the checks and balances necessary to protect people from powerful institutions. It underpins the rule of law.”
It is also important to note that the courts are a reactionary body, in that the Judiciary cannot proactively rule on issues, only those which are brought before it. The political classes can be quick to complain of the courts encroaching on the political sphere, such grumblings are fundamentally mis-founded. As Helena Kennedy QC retorted in rejection of Lord Sumption's claim that the courts are menacingly and unconstitutionally increasing their scope for intervention, the expansion of judicial scope is due to the increase in claims brought in response to abuses and misuses of State power. The courts do not seek out issues they wish to have a say on, but rather provide the platform and mechanism for citizens to hold the Government to account.
As a result the courts should not be criticised for expanding their remit. Instead research is needed into why, despite deliberate attempts to limit the availability of judicial review (not a new endeavour for the Tories), citizens are finding it necessary to bring claims in increasing volume and variety.
Recent Judicial Review Cases
In conclusion, recent and current judicial review claims that exemplify the need for the procedure and the issues regarding liberty and protection of rights that could arise should the process be weakened by the Government:
Friends of the Earth are currently submitting a judicial review claim against the Government's allocation of $1bn in tax money to a huge fossil fuel project in Mozambique on the grounds that it is incompatible with the Paris Agreement. (https://www.theguardian.com/business/2020/sep/07/legal-challenge-uk-1bn-grant-mozambique-gas-project)
Data Privacy and the Death Penalty (Elgizouli v Secretary of State for the Home Department  UKSC 10)
The Court found the UK government had illegally shared personal data with the US, facilitating the imposition of the death penalty against two British citizens in contravention of the European Convention on Human Rights and the Human Rights Act 1998. (https://ukhumanrightsblog.com/2020/04/14/government-acted-unlawfully-in-assisting-usa-to-prosecute-is-fighter-an-extended-look/)
Care Home Visits during Covid-19
Challenge to the Government’s restriction on care home visitors during Covid-19 with the hope of family members being recognised as integral to wellbeing and happiness, especially for those with conditions such as dementia who found themselves isolated from loved ones. (https://www.bmj.com/content/370/bmj.m3467)
Torture and Rendition
Reprieve brought a claim against against the Government on the grounds that it had breached its duty to fully investigate, through a public inquiry, 15 cases where British intelligence were potentially involved in torture or rendition. The review was instead conducted in secret. This leaves no room for allegations of false information used in the detentions and cases against the defendants to be investigated.
AI and Immigration
The Joint Council for the Welfare of Immigrants is set to challenge the use of the Home Office’s AI immigration algorithm on grounds of discrimination amid claims that the system has a secret list of “suspect nationalities”. (https://workpermit.com/news/discriminatory-uk-visa-algorithm-faces-legal-challenge-20200625)
Do Not Resuscitate Orders (during Covid-19)
A claim brought against the Government by a private citizen on the issuing of “Do Not Resuscitate Orders” during Covid-19, often without the patient's knowledge or consultation. (https://www.independent.co.uk/news/health/coronavirus-dnars-matt-hancock-resuscitate-judicial-review-a9499981.html)
Lock Change Evictions
Judicial Review is not a liberal campaign tool and cannot simply be dismissed as one. It is still rooted in the letter of the law as is evident here. A claim against the use of Lock Change Evictions without court authorisation was dismissed, meaning the policy stands and asylum seekers can essentially be forcibly put on the streets. (https://ukhumanrightsblog.com/2020/04/08/supreme-court-rejects-appeal-in-serco-lock-change-evictions-case-but-what-effect-has-the-human-rights-challenge-already-had/)