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Melanie Carter
Partner and Head of Public & Regulatory
On Friday (31 July 2020) the Government launched an independent review to examine whether there is a need to reform the judicial review process in the UK.
Partner and Head of Public & Regulatory
Consultant
The terms of reference of the review are available here. The review follows a pledge in the Conservative manifesto to ensure judicial review is “not abused to conduct politics by another means or to create endless delays”. It is clear that the Government’s review aims to consider whether judicial review has encroached too far into the work of the executive branch of government.
Of particular note is the intention of the review to reconsider the rules on standing for judicial review, which could potentially make it harder for campaign groups and charities to bring claims against public bodies.
The question of whether the role of the role of judges has expanded too far has been controversial for decades, particularly in the field of human rights, where the Courts have taken a lead in developing “constitutional” rights. The constitutional rights recognised by the Courts cannot be overturned by Government without Parliament “squarely confronting” that decision (the “principle of legality” – Ex P Simms [2002] 2 AC 115). This can make it hard for the executive branch of government to get things done.
Two very obvious examples of the kind of case the Government is targeting with this review are Miller (No. 1) [2017] UKSC 5 and Miller (No.2) [2019] UKSC 41.
In Miller (No. 1), brought by British businesswoman and campaigner Gina Miller, the key question was whether the Prime Minister had the power to withdraw the UK from the EU treaties without Parliamentary approval. The UK Supreme Court considered it had power to rule on this question of authority, and it went on to side against the Government – requiring Parliamentary legislation to be passed. The Court’s decision was put down both to Parliamentary Sovereignty and the principle of legality.
In Miller (No. 2), the question was whether the Prime Minister’s prorogation (suspension) of Parliament for five weeks from 9 September – 14 October 2019 was lawful. This move had been denounced by opponents as designed to prevent MPs from blocking the UK’s Brexit deal. The Supreme Court again found that it had the power to rule on this question. It went on to find the prorogation of Parliament had been unlawful and void, and Parliament resumed shortly thereafter, thus thwarting the executive’s plans.
The view that the UK Courts have overstepped the mark in these and other cases relating to executive power appears to be one impulse behind the independent review announced on Friday. The four questions to be considered by the wide-ranging review are:
It should be noted that reforms to judicial review were consulted on by the government in 2013, however some of the more controversial changes – including reforming the test for standing for judicial review – were not proceeded with. There was no mention of a public consultation in Friday’s announcement, however proceeding with the major constitutional change that could result from the review without further consultation would be unwise. It is not hyperbolic to state – as some already have – that a mis-step by the Government here could risk a constitutional crisis.
The review will be chaired by Lord Edward Faulks QC (who has previously argued for repealing the Human Rights Act), with the proposed panel consisting of legal practitioners and academics, including Professor Carol Harlow QC, Vikram Sachdeva QC, Professor Alan Page, Celina Colquhoun and Nick McBride. It is expected to report back later in 2020. Any recommendations for reform would then be put forward for consideration by Lord Chancellor (Robert Buckland QC) and Michael Gove as Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office.
These issues will affect all those who have or might use judicial review to support their aims or have to defend themselves against challenges. Bates Wells will be involved in any consultation and will aim to bring clients together to discuss so that their experience and views can be inputted.
If you have any questions on the above or would like further advice, then please do get in touch with Melanie Carter.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of August 4, 2020.