Judicial review and policy making: The role of legal advice in government

This report calls on ministers and officials to accept that judicial review improves policy and recommends that they review their own policy making processes before trying to limit judicial scrutiny of ministers’ decisions.

Central government faces over 2,000 claims for judicial review each year in the High Court. Ministers’ concerns about judicial review have intensified following high-profile Brexit-related challenges, and the 2019 Conservative manifesto promised to ensure that judicial review would not be “abused to conduct politics by another means or to create needless delays”.

The government is currently consulting on changing the law that is applied in judicial review cases, although its expert Independent Review of Administrative Law recommended against major reforms, warning that judicial review is a “fundamental prerequisite for effective executive accountability”. 

The report argues that judicial review would cause less frustration in government if ministers and civil servants better understood what legal advice is for and how to use it.

It argues that the prospect of a judicial review often leads to more effective decision making in Whitehall. The legal requirement that government decisions have a “rational basis” encourages evidence-based policy making, while the requirement for public bodies to follow a fair decision-making process promotes transparency. The report also says that ministers should test controversial policies in parliament rather than in court, as judges cannot strike down primary legislation.

Drawing on interviews with civil servants, government lawyers, special advisers and former ministers, the report finds that some of the government’s frustrations, including those about delay, are widely shared in Whitehall. However, the government can address some of those worries by improving the process by which ministers take legal advice.

The report recommends that:

• Officials must involve lawyers early to avoid having to ‘row back’ on policies at the last minute
• Policy officials should not hide behind legal advice when there are problems with a policy, as this reduces ministers’ confidence in that legal advice
• The policy profession must be properly trained in how to commission and interrogate legal advice so that policy makers and lawyers ‘speak each other’s language’ 
• Ministers must communicate more effectively with each other and their officials about their appetite for legal risk.