- My LS
Fundamental principles for judicial review reform
The government is currently considering reforms to judicial review.
It first established the Independent Review of Administrative Law to collect evidence and issue recommendations. This ran from July 2020 to January 2021.
Following the review’s report, the Ministry of Justice is now consulting on proposals for reforms to judicial review.
In collaboration with our members, we developed the following fundamental principles that the Independent Review of Administrative Law and Ministry of Justice must protect and enhance in any reforms to judicial review.
Maintaining checks and balances
The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the law.
Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be weakened.
Its essential contribution to upholding the rule of law and principles of democracy within the broader constitutional system must not be diminished.
Guaranteeing that it stays an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators (according to the laws made by parliament) must be a cornerstone of any possible reform.
Judicial review brings law and politics into close contact. A mature democracy must be prepared to deal with these tensions.
Judges must be free to exercise their duties in judicial review:
- without fear or favour
- away from political considerations and criticism
- without being assumed to have an agenda beyond their role in upholding the law
This allows them to fulfil their constitutional role, and effectively enforce the rights of individuals and organisations.
Judicial review focuses on the decision-making of:
- public bodies
A judicial review case addresses whether these bodies use their powers in accordance with the law. As such, judicial review must be available to all who are affected by the decisions of these bodies.
This includes citizens and non-citizens, when relevant, such as immigration cases or when a company has business interests in the UK.
Organisations such as charities or trade unions should also be able to act, within reasonable limits, in the interests of the people, bodies, or issues they represent.
They should be able to do this by initiating or intervening in judicial review claims.
Accessibility and affordability
There should not be excessive procedural hurdles which act as a barrier to bringing a claim.
The need for prompt resolution and sufficient opportunity to pursue a claim must be appropriately balanced.
To be fully accessible, bringing a judicial review claim must also be affordable.
Where individuals lack their own financial means, adequate levels of legal aid must be provided to ensure equal access to the courts to enforce their rights.
Costs awards and court fees must not be so punitive or unduly burdensome that they prevent claims being brought.
As judicial review looks at decisions made by public bodies, it often touches on decisions which may be political or seen as political.
As the remit of the state has expanded, so too has the breadth of decisions subject to judicial review.
It is not the role of courts to second-guess political decisions, and judicial review should not encroach upon the legitimate use of state power. Judges are sensitive to this and they can, and routinely do, make decisions about what is outside the scope of judicial review.
However, there should be no artificial or inconsistent restrictions upon the type of decisions that can be reviewed.
Where there are legal questions, the court should rightly be able to decide that these and certain issues, or categories of issues, should not be precluded from judicial review.
Given the imbalance of power between individuals and the state, it’s important that people have a meaningful ability to challenge decisions which affect their lives and legal rights, to ensure these have been made lawfully.
For judicial review to operate effectively as a remedy of last resort, there must be adequate alternative mechanisms in place for people to assert their rights.
The circumstances of judicial review cases are wide-ranging. What will be a fair outcome in one will not necessarily be so in another.
Judges must have a range of remedies at their disposal, and the discretion to award these, to ensure that justice is meaningfully done.