We talk to Raphael Hogarth, 11KBW pupil and associate at The Institute for Government, about the controversy around the proposed changes to judicial reviews.
Joel Poultney, August 2021
In February 2020, Attorney General Suellea Braverman said she wanted to “take back control” from the judiciary. It followed the 2019 Conservative Party manifesto pledge to end the “abuse” of judicial review for political means. To clarify, judicial review is the process whereby decisions of public authorities are subject to legal scrutiny: a necessary democratic pillar.
Many observers view the government’s efforts to reform the judicial review process as being largely motivated by self-interest. In particular, its defeats in the Article 50 and prorogation Supreme Court cases led to more vocal calls from party members to push back against the ostensibly overreaching power of an increasingly interventionist judiciary. Raphael Hogarth, 11KBW pupil and associate at The Institute for Government, tells us: “The big picture is that government has said it wants to restore the balance between the executive and judiciary whereby policy is for ministers and questions of law are for judges.” Yet despite political jockeying and media spin, the judiciary is an apolitical body, applying objective legal arguments without political bias when overturning unlawful decisions.
“The big picture is that government has said it wants to restore the balance between the executive and judiciary.”
Against this backdrop, government launched the Independent Review of Administrative Law (IRAL) in July 2020 to consider options for reforming the judicial review process. Led by Lord Faulks QC, the panel considered whether “the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.” It submitted its findings in January 2021 and made two recommendations. Firstly, in legislating for the introduction of suspended quashing orders: an order a court makes when it has found a decision to be unlawful. Secondly, it recommended legislating to reverse the Supreme Court Cart decision and remove Upper Tribunal appeals being subject to judicial review.
In March 2021, the government then consulted on the recommendations proposed by Faulks. According to prominent bodies such as Liberty and the Law Society, the consultation fundamentally misunderstood and went beyond Faulk’s recommendations without justification. These proposed measures included implementing prospective-only quashing remedies as well as ouster clauses, which ringfence government decisions beyond the court’s reach. The Constitutional and Administrative Law Association (ALBA) said the consultation “misunderstood the IRAL report, its terms of reference and its conclusions.”
Fast forward to July, and the government released its Judicial Review and Courts Bill. Hogarth tells us: “There’s a sense that lots of public lawyers have heaved a sigh of relief about judicial review reforms.” He adds that “the Bill is quite thin in relation to judicial review and doesn’t do nearly as much as expected on the basis of the proposals in the consultation.” The restraint showed in the Bill for Hogarth shows “the government decided that moving beyond the Faulks panel recommendations is not something it wanted to fight about, so it has brought in modest reforms.”
Firstly, the Bill allows courts to suspend the effects of a quashing order so they won’t take effect until a specified date. “Ministers think there are circumstances where it can very seriously prejudice good administration for a quashing order to come into effect straight away,” Hogarth says, adding that “the suspension is supposed to give time for the government to get its ducks in a row.” Secondly, it limits the retrospective effect of these orders, meaning a court can determine an action unlawful without invalidating prior action. Tom Hickman QC of Blackstone Chambers suggested that the limits on retrospective effects are “more significant and far-reaching” and would “allow judges to cancel permanently the invalidity of unlawful decisions or instruments insofar as they pre-date the court’s ruling.”
“In a modern democracy you get taken to court by campaigners who aren’t your best friend and sometimes you lose.”
What’s been more controversial, however, is how the Bill reverses the effect of the 2011 Cart Supreme Court judgement. The decision now prevents parties in immigration and asylum cases from bringing a judicial review in the High Court, should they have been refused appeal in the first-tier and upper tribunal. In a recent statement, President of the Law Society, Stephanie Boyce, said this should “ring alarm bells” for those seeking legal remedies against unlawful state actions. She added: “The MOJ suggests the Bill may set a precedent for government to give itself the power to remove certain types of cases from the scope of judicial review, which would effectively spawn a new breed of ouster clause.” The evidence on which the government relied for this proposal has been disputed.
Does the Bill fulfil the agenda set out by the Conservative Party in 2019? For Hogarth, “the truth is that the Bill will disappoint those who were really excited about the manifesto pledge.” Political campaigners and ‘activist lawyers’ will continue to be thorns in the government’s side. “But in a modern democracy,” according to Hogarth, “you get taken to court by campaigners who aren’t your best friend and sometimes you lose. That doesn’t mean you’re a victim of abuse. It can mean that the system is working.” So while the Bill may fall short for those wanting judicial review to be reformed to end the supposed ‘abuse’ of the process, for Hogarth, that the Bill does not do that is, “no bad thing.”