Administrative and public law

Upholding rights through independent courts key to democracy

An essential element of democracy requires that anyone who is affected by the decisions of public bodies is able to raise a challenge in the courts, said the Law Society of England and Wales as it submitted evidence to the Independent Review of Administrative Law.

Law Society president David Greene said: “Judicial review allows ordinary people to ask an independent judge to decide whether a public body has acted lawfully or not. Anyone affected by a public body’s decision must be able to have the mechanism to challenge it.

“There is an imbalance of power between individuals and the state, which judicial review bridges – it must be effective and accessible to all.

“Judicial review doesn’t test politics, just lawfulness – it asks, has a public body used its powers in the way the law allows? The availability of this test drives good governance. It also enhances trust in state institutions and public decision-making, for individuals and for private businesses that have interests in the UK, where a strong adherence to the rule of law and the ability to defend business interests is important to attracting investment.”

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% to 50% are decided for claimants and 50% to 60% for public authorities.

Four reforms 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

David Greene added: “The people who most need judicial review are often the most vulnerable people in our society. That’s why we believe organisations should be able to bring legal challenges on behalf of those they represent or those that can’t afford it, and that judicial review should continue to be possible in the public interest.

“Judicial review has a vital place in the UK’s constitutional balance of powers between the executive – the government – parliament and the courts. It must continue to have the teeth to provide a check on the misuse of executive power, whichever the government of the day, and to ensure accountability of all public bodies.”

Notes to editor

Read our submission to the panel

The independent review of administrative law will consider evidence and make recommendations to government on possible reforms to judicial review, which is a route by which people can legally challenge decisions made by public bodies through the courts.

Read our statement on the principles of judicial review

Our 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).

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