What is judicial review and why doesn't the government like it?

Downing Street’s frustration over what it believes is excessive use of the judicial review process to overturn ministerial decisions – this week preventing deportations – has focused political attention on the complex courtroom process.

What is judicial review?

It is a means of questioning the lawfulness of decisions made by public bodies, such as local councils, government departments, police forces or health authorities. Cases usually start in the administrative division of the high court and involve a claimant alleging that an official or minister made a mistake in law.

Do applications always go to trial?

The first stage of an application depends upon a judge deciding there is a legitimate point of law to examine and granting permission for the hearing to go ahead. Often judges hear the permission stage and the substantive arguments at the same time in what is known as a “rolled-up” hearing. The challenged public body responds to the claim, and other parties with an interest in the issue can intervene in cases.

Why is there such concern over judicial review?

The government was defeated in two Brexit judicial reviews in the supreme court – one on article 50 and the other on the prorogation of parliament – although both resulted in parliament’s powers being re-asserted. These outcomes have re-sharpened the suspicion of judicial review claims.

The former supreme court justice Lord Sumption last week argued that there was evidence of excessive and inappropriate use of judicial review to overturn government ministers’ decisions. He noted, however, that: “The next generation [of judges] coming up are more cautious about operation of their powers.”

Having complained for so long about European judges supposedly interfering in UK law, the Tory refrain appears to be switching back to traditional resentment of British judges and courts thwarting political decisions.

Have the number of judicial reviews increased?

The Bar Council points to the fact that applications for judicial review fell by 44% between 2015 and the end of September 2019.

Access to judicial review was significantly restricted by the coalition government in 2013 when it tightened the right to use legal aid for challenges. It also raised court fees. The justice secretary at the time, Chris Grayling, said he was determined to drive out “meritless applications” which were used as a “cheap delaying tactic”.

How might the government further limit judicial review cases?

The Cabinet Office is overseeing delivery of the constitution, democracy and rights commission which was promised in the Queen’s speech. Any plans to change the judicial review process may well be included; the commission’s scope, procedures, personnel and remit have not yet been decided.

Who is defending the right to judicial review?

Gina Miller, the victor in both the article 50 and prorogation cases, said last week she was concerned about proposals to restrict judicial review challenges against the government. “I would argue there needs to be an increase [of legal scrutiny of government decisions],” she said. “It’s not just about political questions. What will this attack mean to social justice?”

Amanda Pinto QC, the chair of the Bar Council, said: “Judicial review is a hugely important tool in a democratic society by which decisions of public authorities, including government, are subject to legal scrutiny.”

Simon Davis, the president of the Law Society of England and Wales, said: “Judicial Review is a vital part of the checks and balances necessary to protect people from powerful institutions. It underpins the rule of law.”