Judicial review reform – government must remain accountable to the people

Judicial review is an essential check on power which ensures the public can hold government to account, the Law Society of England and Wales said as it submitted its response to the government’s consultation on reform of judicial review.

Law Society president I. Stephanie Boyce said: “Proposed changes to the ways in which legal challenges can be brought against the state would make life easier for the government at the expense of accountability and access to justice. That would damage the rule of law.

“The Ministry of Justice (MoJ) has gone beyond what was recommended by the expert panel set up to advise it, with no evidence to back up this over-reach.”

Public opinion is clear – 93% of people said they think it is unacceptable for government or public bodies to act unlawfully and 95% agree that judicial review is important because the government should have to follow the law just like everyone else (with only 1% disagreeing with this statement).

I. Stephanie Boyce said: “Ouster clauses, which the government proposes to enforce more often, ringfence government decisions beyond the reach of the courts. They should only be used in rare, exceptional circumstances with strong justification. The government seems to want carte blanche – it gives no vision for how or when or why it considers that ouster clauses would and would not be appropriate.

“Collectively, the most controversial proposals* would allow unlawful acts by government or public bodies to be untouched or untouchable. This would harm individuals that challenged them and others who might fall foul of the same unlawful act or decision in the future.

“Proposals would restrict judicial discretion to an unacceptable degree and deny successful litigants an effective remedy. For instance, suspended quashing orders as an option available to the courts could be a good idea – but would curtail judicial discretion if mandated or presumed as government suggests, turning the panel’s recommendation on its head.

“The effect of the proposals would be a fundamental distortion of the protection judicial review is supposed to provide against state action, undermining the rule of law and restricting access to justice.”

Notes to editors

* Ouster clauses, prospective remedies and nullity – determining when a court can rule that an act is “unlawful, null and of no effect”

Read the Law Society’s consultation response in full

The poll was a Law Society survey, sample size: 1500 adults in UK (16+)

About the Law Society

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