Judicial review – a need for reform?

On 31 July 2020, the government launched a review of the judicial review process, to be conducted by an independent panel of experts. Led by Lord Edward Faulks QC and consisting of a range of legal practitioners and academics, the panel will examine “whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.”[1]

The judicial review process

Judicial review is a type of court proceedings which enables an individual or a group to challenge a decision made or taken by a public body. A ‘public body’ may include, for example, central government, a local authority or regulatory bodies. In a judicial review, the court will look into whether the decision or action itself was made lawfully – it will not necessarily challenge the outcome of that decision.

The Conservatives’ election manifesto included a promise to reform the judicial review process.

What sparked the debate?

Two recent legal challenges against the government are thought to be at least partly behind the government’s decision to launch a review. These are Miller (No. 1) [2017] UKSC 5 and Miller (No. 2) [2019] UKSC 41. Both cases were brought by Gina Miller, a businesswoman and campaigner.

In 2017, Ms Miller successfully challenged Theresa May’s government after it invoked the Article 50 notice to leave the EU without consulting MPs. Two years later, in 2019, Boris Johnson’s decision to prorogue parliament was ruled unlawful by the UK Supreme Court.

What will the independent review consider?

Essentially, the independent review will examine whether the judicial review process is encroaching too much on the Executive’s ability to work quickly and efficiently. The Executive comprises all official and public authorities (including local authorities) that govern the United Kingdom.  According to the government’s website, the review will look at:

  • Whether the terms of Judicial Review should be written into law;
  • Whether certain executive decisions should be decided on by judges;
  • Which grounds and remedies should be available in claims brought against the government; and
  • Any further procedural reforms to Judicial Review, such as timings and the appeal process.

Not without its critics

Not everybody agrees with the Conservative government’s desire to reform the judicial review process. The Labour Party vehemently opposes any reform to the current system, arguing that “the independence of judges is central to our democratic settlement”. Meanwhile, Gina Miller herself has stated that “the government appears to be more concerned with avoiding scrutiny than reform”. She also argued that, while the government’s original manifesto pledge involved the establishment of a commission to examine “the relationship between the government, parliament and the courts”, the decision to instead ‘fast-track’ the review through the appointment of a panel of experts “is to prevent any accountability for the handling of the pandemic via judicial review.” [2]

Whereas a commission is given powers to undertake a specific task, a panel is usually appointed in an advisory capacity and the government does not have to act on its findings.

A difficult balance

Whatever the outcome, with the launch of this review, sources on both sides of the political divide fear that the government is walking a unwelcome tightrope and may stray potentially into a political grey zone. With the panel due to report on its findings later this year, the government must strike a delicate balance between the democratic right of the electorate to challenge the Executive and efficient governance.

[1] https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review

[2] https://www.independent.co.uk/news/uk/politics/boris-johnson-judicial-reviews-supreme-court-uk-governemt-a9637601.html

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