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Is judicial review “abused to conduct politics by another means”?

Before solving the problem with judicial review, the panel is going to have to work out what it is

The government has asked a panel of legal experts to look at options for reforming judicial review, the process by which the courts are asked to examine the lawfulness of government decisions. Before solving the problem, the panel is going to have to work out what it is, argues Raphael Hogarth

The government’s independent panel on judicial review is due to report by the end of the year. Ministers have said that the purpose of this exercise is to ensure that JR is not “abused to conduct politics by another means”.

In broad terms, the current law is that a government decision can be challenged in court on the basis that it was outside the powers given to government by the law, or was so unreasonable that no reasonable decision maker could have arrived at it, or was made as a result of an unfair procedure.

The panel has been asked to make recommendations about whether those “grounds” of review should be codified in statute, and whether they should be changed. It has also been asked to consider which government decisions should be reviewable, and whether the government should change the procedure by which cases are brought.

It is unclear, however, what problem ministers are trying to solve.

The courts are already reluctant to consider the merits of policy decisions

The idea that judicial review should not be used for “politics by another means” is, as lord chancellor Robert Buckland acknowledged in a recent blog, cribbed from a judgment of the High Court. In that case, the judges warned potential challengers that the courts will run a mile from ruling on the wisdom of government decisions, and will run furthest and fastest from economic and national security decisions.

Lord Justice Singh said that “judicial review is not an appeal against governmental decisions on their merits. The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone.” If ministers are worried about judges overturning political decisions on political grounds, the courts are already on their side.

Frustration about who is taking the government to court would be a weak basis for reform

Perhaps, when ministers say they want to stop judicial review being used for politics by another means, they mean that it should not be used as a tool by campaigners to accomplish political goals.

But that view is disconnected from the real world. It is not campaigners or “activist lawyers” who are responsible for government decisions being quashed, but the courts applying the law – and it will always be those who disagree with government decisions who bring those cases to court in the first place.

When the High Court ruled that the government was breaching its legal obligations on air quality, for instance, what difference did it make that the case was brought to court by campaigning group ClientEarth? The government might think those campaigners should have conducted politics by “political means”, but there was no point persuading politicians to pass a law that made ministers adopt a different policy. There already was one and ministers were breaking it.

Ministers may not like being taken to court by their opponents, but they are hardly going to get taken to court by their friends.

In the end, ministers may just want more deference from the judges

The government might be frustrated, instead, that judges have developed the law in a way that allows executive decisions to be struck down too easily. It might think that judges now show insufficient deference to elected politicians, too readily concluding that executive actions have interfered with constitutional rights or common law standards of decision making, and placing too little weight on the democratic mandate of ministers and the demands of efficient administration.

The courts themselves have long grappled with how best to strike that balance. It is always legitimate to question whether the law has developed in a good or bad direction, although it is far from clear that, if a course correction is needed, the government and Parliament are better placed than the courts themselves to make it.

The government also needs to remember that the judges show huge deference to elected politicians. That is because they always defer to a sovereign Parliament – just not always to the executive.

For example, when the Court of Appeal struck down the decision to build a third runway at Heathrow, George Osborne called it “overreaching undemocratic judicial activism”. Yet the court just gave effect to a law passed by Parliament in 2008, saying that when the government makes a decision like that it must explain how it has taken account of its own policy on climate change. Even in the big Brexit cases, the courts’ primary concern was to ensure that Parliament was in control: first in triggering Article 50, and then in the run-up to Brexit when the government tried to prorogue.

It is true that judges’ ability to strike down government decisions has expanded in the last half-century due to the development of human rights law, and the role of EU rules in the legal system. Those matters, however, are outside the scope of the government’s review.

So while it is easy to see why ministers might be frustrated  with judicial review, it is harder to identify the problem they want solved. The panel could no doubt produce an interesting report on the options for reform – but just as urgent is for them to consider whether and why reform is needed at all.

Institute for Government

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