On 31 July 2020 the Government launched an independent review to examine whether there is a need to reform the judicial review process in the UK. The terms of reference of the review are available here. The review follows pledges in the Conservative manifesto to ensure judicial review is “not abused to conduct politics by another means or to create endless delays”. The terms of reference make it clear that the review aims to consider whether judicial review has encroached too far into the work of the executive branch of government.
The question of whether the role of the role of judges has expanded too far has been controversial for decades, particularly in the field of human rights, where the Courts have taken a lead in developing “constitutional” rights. The constitutional rights recognised by the Courts cannot be overturned by Government without Parliament “squarely confronting” that decision (the “principle of legality” – Ex P Simms  2 AC 115).
Two very obvious examples of the kind of case the Government is targeting with this review are Miller (No. 1)  UKSC 5 and Miller (No.2)  UKSC 41.
In Miller (No. 1), brought by British businesswoman and campaigner Gina Miller, the key question was whether the Prime Minister had the power to withdraw the UK from the EU treaties without Parliamentary approval. The UK Supreme Court considered it had power to rule on this question of authority, and it went on to side against the Government – requiring Parliamentary legislation to be passed. The Court’s decision was put down both to Parliamentary Sovereignty and the principle of legality.
In Miller (No. 2), the question was whether the Prime Minister’s prorogation (suspension) of Parliament for five weeks from 9 September – 14 October 2019 was lawful. This move had been denounced by opponents as designed to prevent MPs from blocking the UK’s Brexit deal. The Supreme Court again found that it had the power to rule on this question. It went on to find the prorogation of Parliament had been unlawful and void, and Parliament resumed shortly thereafter, thus thwarting the executive’s plans.
The view that the UK Courts have overstepped the mark in these and other cases relating to executive power appears to be one impulse behind the independent review announced on Friday. The four questions to be considered by the wide-ranging review are:
1. Whether the terms of Judicial Review should be written into law – with a particular focus on amenability of public law decisions to judicial review . A footnote in the terms of reference also asks whether it is right that both the scope of an executive power and the manner in which it is exercised should be open to judicial review in the same way.
2. Whether certain executive decisions should be decided on by judges – including whether there are areas where the issue of the justiciability could be considered by the Government.
3. Which grounds and remedies should be available in claims brought against the government – including the grounds on which the Courts should be able to find a decision unlawful; whether those grounds should depend on the nature of the power; and what remedies should be available in respect of the various grounds.
4. Any further procedural reforms to Judicial Review, such as timings and the appeal process – including whether reforms are necessary to “streamline the process”, in particular relating to:
a. the burden and effect of disclosure regarding “policy decisions”;
b. the duty of candour as it affects Government;
c. the law of standing;
d. time limits for bringing claims,
e. the principles on which relief is granted in claims for judicial review;
f. rights of appeal, including on the issue of permission to bring JR proceedings; and
g. on costs and interveners.
It should be noted that reforms to judicial review were consulted on by the government in 2013, however some of the more controversial changes – including reforming the test for standing for judicial review (said to be an issue on account of campaigning judicial reviews) – were not proceeded with. Interestingly, there was no mention of a public consultation in Friday’s announcement, however proceeding with the major constitutional change that could result from the review without further consultation would be unwise. It is not hyperbolic to state – as some already have – that a mis-step by the Government here could risk a constitutional crisis.
The review will be chaired by Lord Edward Faulks QC (who has previously argued for repealing the Human Rights Act), with the proposed panel consisting of legal practitioners and academics, including Professor Carol Harlow QC, Vikram Sachdeva QC, Professor Alan Page, Celina Colquhoun and Nick McBride. It is expected to report back later in 2020. Any recommendations for reform would then be put forward for consideration by Lord Chancellor (Robert Buckland QC) and Michael Gove as Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office.
By Melanie Carter and Sarah Court-Brown, Bates Wells