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Judicial Review reform: An attack on our legal rights?

By Clive Coleman
Legal correspondent, BBC News

image copyrightPA
image captionFormer Gurkhas won the right to settle in the UK using Judicial Review

Judicial review isn't 'sexy', but it is important.

Arguably, it is the most important and effective way in our democracy of holding the government and other public authorities to account.

On Monday the House of Commons will debate government plans to reform it, contained in the Criminal Justice and Courts Bill, which Labour's Shadow Lord Chancellor and Justice Secretary Sadiq Khan has described as 'an unconstitutional attack on the rights of the British people'.

Is that hyperbole, or is this truly a constitutional issue of unique importance?

Put simply judicial review is the process by which ordinary people and organisations can apply to the courts to challenge the lawfulness of decisions made by public bodies, including government. It enshrines the citizen's right to ask a judge to consider whether a public body has followed its own rules - usually those set out by Parliament or ministers.

Few would disagree with the idea that ordinary people - patients, pupils, the disabled - should be able to ensure that those who govern them do so lawfully.

But a canter through history gives a flavour of why Judicial Review excites such strong views.

Ancient origins

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image captionChris Grayling says reform will limit time-wasting cases

Its origins can be traced back to medieval times and to the King's writs that were originally used, somewhat ironically, to hold the King's own ministers to account.

Those roots are critical and go to the essence of judicial review.

It isn't statutory, it's judge-made law developed on a case by case basis.

It really took off in the 1970s and 80's when parliamentary opposition to the executive was very weak - and when a certain Mr Ewing of Dallas was in his pomp, which is why it is perhaps known as 'JR'.

The former Lord Chief Justice Lord Woolf has said the judges may have subconsciously seen themselves as having a role in protecting the public interest in that period - stepping in to correct a democratic deficit perhaps?

Case law developed so that the decisions of public bodies could be challenged if they were so unreasonable as to defy logic.

Then judicial review began looking at the fairness and merits of decisions.

Human Rights Act

But perhaps JR's biggest boost came from the Human Rights Act.

Government and public bodies had to act in a way that was human rights compliant, which meant human rights points began to feature in judicial reviews, often making the key difference.

There is now almost no area of the decision making of central or local government that cannot be scrutinised by 'reviewing' judges.

Examples of successful judicial reviews include:

  • Lewisham hospital closure
  • The closure of the Independent Living Fund (which assists some 18,000 severely disabled people)
  • The HS2 compensation scheme
  • Gurkha soldiers
  • Compensation for former Japanese prisoners of war
  • The government's nuclear strategy

You get the picture: JR is right up there with the ballot box as a democratic means of holding power to account.

Constitutional tension

And that has created what is seen by many as 'the' constitutional tension of our times, between on the one hand, a powerful executive, that likes to stomp around the constitution, getting its way on everything.

And on the other, a small independent judiciary - not supported by a big civil service and punching well above its weight - which can hold the executive to account in a way that is arguably far more effective than parliament.

image copyrightPA
image captionMichael Howard is concerned that judicial review gives too much power to unelected judges

But not everyone is a fan of the rise and rise of JR.

The former Conservative leader and Home Secretary Lord Howard sees a danger in unelected and unaccountable judges entering the realm of 'political' decision making.

He told me that he sometimes thought he might have had a greater influence on political life if he had become a judge, rather than an elected politician.

He is not alone. The Supreme Court Justice Lord Sumption has warned that judicial review risks trespassing on the proper democratic function of government and the legislature.

Dangers of reform

However, JR's supporters are convinced of its critical importance and see the current plans to reform it, as dangerous.

How, they ask, can the government justify reducing the most effective means its citizens have of scrutinising the legality of its decision making?

Because, says the Prime Minister and the Justice Secretary, there is a lot of it about, and it is growing.

The use of judicial review has indeed increased more than threefold in recent years from around 4,240 in 2000 to around 15,600 in 2013.

However, that increase has been predominantly in immigration and asylum cases where it has been used as a pragmatic means of appealing decisions.

The rise in other judicial reviews over the period has been far more modest.

Civil judicial reviews have increased by from 1,730 in 2000 to 2,190 in 2013.

And, guess what, the government wins the overwhelming majority of them.

It isn't easy bringing a JR or funding it.

Few individuals or pressure groups have the streamlined legal resources of central or local government.

"Our reforms will bring balance to the judicial review system so justice is done, but unmerited, costly and time-wasting applications no longer stifle progress," says the Justice Secretary Chris Grayliing.

He himself has been successfully judicially reviewed twice in recent months over his legal aid reforms - one of which affected the legal costs recoverable by those suffering from the asbestos related cancer mesothelioma.

At the heart of the current controversy is a proposal that judges will be required to let public bodies escape the legal consequences of their unlawful action if they can persuade the court that it is highly likely that they would have taken the same action even if they had acted lawfully.

David Wolfe QC who specialises in judicial review cases says: "That 'get out of jail free' trump card would completely undermine the basic rule of law principle that public bodies, including the government itself, have to comply with the law like anyone else."

Peers vote

In October Peers voted to restore judicial discretion to several elements of the reforms.

image captionLord Woolf warned of an 'elective dictatorship'

Emotions were running high in a debate in which Lord Woolf warned that the alternative amounted to an 'elective dictatorship'.

The Justice Secretary has in the past said that his plans are needed, in part to stop "left-wing" campaigners who have used judicial review to frustrate government initiatives.

However, it is not just those on the left who oppose the reforms.

Peers who voted against the government included the former Conservative cabinet minister John Selwyn-Gummer, Lord Deben.

He said: "It is unacceptable if we have a system whereby if the government has acted illegally it can't be brought to account in the courts.

"The British defence of freedom is judicial review."

Other peers voting against the reforms were a pretty broad church comprising, in addition to Labour, the former Tory chancellor Lord Howe, and 17 Liberal Democrat peers, including the former party leader, Lord Steel, and Baroness Williams.

And the queue of those opposed doesn't stop there.

'Deep injustice'

Eleven police and crime commissioners, including former solicitor general Vera Baird, have written to The Times describing the plans a "potentially deep injustice".

They believe the bill would "increase the risk of unlawful administrative action going completely unchallenged.".

The three main legal professions in England and Wales, and groups like the human rights organization 'Justice' have condemned other parts of the reforms they say make it more difficult for charities and non-governmental organisations to intervene in judicial review cases and offer their assistance to the court on matters of public interest.

A game of constitutional 'ping pong' could take place on Monday, with the commons voting for the proposals and the Lords continuing to defy them, until someone blinks.

If, as seems likely, the government eventually prevails, there will be more than a few influential politicians, lawyers and judges asking who shot JR, and why?

More on this story

  • Peers defeat government over judicial review curbs