Judicial review must remain an essential check on state power

Any reforms to judicial review must not undermine the process as an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators, solicitors leaders warned today in the wake of the government’s response to the Administrative Law review headed by Lord Faulks QC.

Law Society of England and Wales president David Greene said: “Judicial review is an essential part of the functioning rule of law, acting as a check on power. Reforms should seek to strengthen it, as some of the changes recommended by the independent panel may well do. We particularly welcome the recommended introduction of suspended quashing orders.

“In today’s announcement, the government has added additional proposals that go beyond the panel recommendations, some of which risk undermining the effectiveness of judicial review and must therefore be closely scrutinised over the consultation period in the next six weeks.

“The idea that there has been a loss of confidence in judicial review is questionable. Trust in judges is high, and the panel itself says it “cannot know either how the population at large feels about the appropriate constitutional place of judicial review or even about the constitution”.

“A Justice Week survey showed four out of five people think it is important government obeys the law, suggesting broad support for accountability mechanisms to uphold the rule of law.”

Ouster clauses:

“We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government, is, and must remain answerable to the law – just like the rest of us.

“To reverse this centuries-old principle, even in specific and limited ways, would undermine the rule of law, and overturn the notion fundamental to British justice that the government is accountable to the people in law, through the court.

“Where there are legal questions, anyone affected must have the right to ask the court’s opinion, and the court must have the entitlement to respond. Executive convenience must not drive an operation to put certain decisions beyond the reach of the courts.

“As things stand, courts can and routinely do decide that decisions are beyond the scope of judicial review, and defer to public bodies. Parliament will need to think very carefully about the potential impact of any proposals for ouster clauses on access to justice and the rule of law.”

Cart judicial reviews:

“Removing the option of recourse to judicial review in any area, let alone one as complex as immigration, risks injustice – as the government itself acknowledges – not only for those people whom the court would have found in favour of, but also for the much larger number of cases where settlement is achieved only under the threat of judicial review, which are not reflected in the panel’s figures.”

David Greene concluded: “Judicial review doesn’t test politics, it tests lawfulness. It drives good governance, enhances trust in state institutions and public decision making.

“It does this for individuals and for private businesses that have interests in the UK. The rule of law and the ability to defend business interests are crucial for attracting investment.

“Judicial review must continue to have the teeth to provide a check on the misuse of state power, whichever the government of the day, and to ensure accountability of all public bodies.”

Procedural changes:

“Improving the judicial review process so that it functions more effectively to uphold justice, as suggested by the panel, particularly at the pre-court stage in order to encourage prompt settlement without lengthy and costly proceedings, may serve to improve access to justice and strengthen the rule of law. We will be able to comment more fully on this when we have had time to consider the detail.”

Notes to editor

A Law Society survey suggested that judicial review cases are settled before court roughly half of the time (49%), rising to 90% in some areas such as immigration law. Independent research showed nearly 80% of claims that were settled before court, were in favour of the claimant, indicating they were valid claims. Of the cases that proceed to a final hearing, 40%-50% are decided for claimants and 50%-60% for public authorities.

The Law Society will continue to advocate for reforms that would assist in reducing the need for citizens to resort to the courts to test the legality of actions or decisions of public bodies:

  • improve access to legal aid – greater access to early legal advice would help improve evaluation of the merits of claims early on, and encourage settlement
  • strengthen the pre-court stage – a significant proportion of judicial review cases are settled before the issue reaches the court, suggesting this is a useful process; greater flexibility to extend time limits where appropriate would allow for more negotiation
  • strengthen the duty to disclose information – to guarantee full and timely disclosure of all relevant material held by public bodies; delays in disclosure often lead to increased costs for both sides
  • bring back the right of appeal in immigration – since this was pared back the number of immigration judicial reviews has gone up as other avenues of appealing Home Office decisions have been closed

Read the Law Society’s statement on the principles of judicial review

The Law Society’s response to this call for evidence has been informed by in-depth consultation with our members.

It has been produced in collaboration with six of our expert committees who operate in practice areas where judicial reviews are typically used (the access to justice, human rights, immigration, mental health and disability, planning and housing committees), as well as benefitting from consultation with further leading judicial review practitioners from across the solicitors’ profession.

We also conducted a wider survey of our members on some of the key areas being considered by the Independent Review of Administrative Law in this call for evidence. The survey received 370 responses from solicitors across relevant practice areas. Of these, 41% act or have acted for claimants, 27% for defendants and 24% for both claimants and defendants.

This response was further assisted by a collaborative research project between the Law Society and the University of Essex, conducted by Professor Maurice Sunkin QC (Hon), Professor Theodore Konstadinides and Lee Marsons. This project is funded by the Economic and Social Research Council (ESCR).

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Harriet Beaumont | 0208 049 3854 (out of hours 0203 189 1880)