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12 August 2021

The government’s Judicial Review Bill risks making a mockery of the rule of law

The bill is the Conservative Party's attempt to take back control of the courts and dodge proper scrutiny.

By samanthadavies Davies

You might have missed it amid all the policy announcements of the Boris Johnson’s “Crime Week”, but on 21 July this year the government published the Judicial Review and Courts Bill. And while it might champion law and order in public, when it comes to its own accountability, the government has a rather different attitude to the rule of law.

The bill is the Conservative Party’s answer to taking back control of the courts. It is no secret that its purpose is to set limits on the power of the courts to review acts or decisions of public bodies. Access to the courts and the ability to challenge government decisions has made the respect for the rule of law in our nation the envy of the world – an accolade which has paid both moral and financial dividends. Yet the changes proposed by the new bill could significantly undermine this.

The government’s rationale for proposing the new legislation is that the current system of judicial review – in their view – was not working. Or, as some would argue, it was working far too well. The litigation that followed the Prime Minister’s decision to suspend parliament in August 2019 is now etched in all our memories. So too is the litigation brought against the last two governments for their handling of Brexit. For some, these cases demonstrated welcome checks and balances within our constitution which should be celebrated. For others, they were evidence of the courts overstepping their role and trespassing on the sovereignty of parliament.

[See also: The politics of lies: Boris Johnson and the erosion of the rule of law]

The basic tenet of judicial review is that public bodies may not act outside their powers, and if or when they do, those affected may seek redress. It is this principle that allows individual members of the public to challenge decision or acts of public authorities. The scope for judicial review has increased over the past two decades, bringing more and more acts or omissions of public bodies within the jurisdiction of the courts.

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The challenge of recent years, which reached its peak in the Brexit and prorogation litigation, is that what is seen by some as a necessary and efficient check on the abuse of power is considered by others as an obstacle to progress. The new legislation is the brainchild of the latter group, who place all their hope in the political process and favour a subordinated role for the courts. They argue that in a democracy, parliament’s sovereignty should be unrivalled.

However, a dogged adherence to this view is to ignore the realities of our parliamentary system. The first-past-the-post system does not necessarily deliver a representative democracy, and even elected governments with strong mandates need to be held accountable. A trip to the ballot box every four or five years isn’t enough. 

The changes to be implemented by the new bill are not as far reaching as suggested by the earlier government consultation. One highly contested issue now ostensibly abandoned by the government was the proposal to extend the use of ouster clauses. Such clauses, when included in legislation, render that area of law or the specific issue beyond the remit of the courts. Courts have generally sought to narrowly construe ouster clauses with judges giving clear indications that they present a very real threat to the rule of law. It is reassuring, therefore, that the provisions on extending ouster clauses have been watered down in this version of the bill. It does, however, present what is essentially an ouster clause by the back door.

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One key change is that judicial review will no longer be available in certain immigration cases – the justification for which was said to be based on the low rate of success in such cases. The decision to remove a specific type of case from the scope of judicial review imposes a de facto ouster clause. And although the law of asylum and immigration may seem far removed from the lives of many, this could set an unwelcome precedent for other areas of law.

Another change is that a finding of unlawfulness in respect of a particular decision or action by a public authority will no longer invalidate prior acts. So even in a case where a final decision is deemed unlawful, earlier related decisions may stand. This could mean that a successful challenge is effectively a victory in name only. For example, a court could decide – hypothetically speaking – that a local authority’s decision to levy a charge on users of a public library was outside its powers. Previously, such a ruling would mean the decision to levy charges was void and of no legal effect: the local authority would cease levying the charges and those who had made payments as a result of the unlawful charges would have a right to claim for losses suffered. Under the proposed legislation a judge could decide that the ruling on the unlawfulness of the charges should have no retrospective effect or not take effect until a specified date, meaning the local authority could continue to levy the charges until then. This change weighs heavily in favour of public authorities.

[See also: Boris Johnson’s clever trick to get away with anything – even the Covid catastrophe]

The independent panel of experts chosen by the government and tasked with examining the system for judicial review as it presently stands found little wrong with it. It is therefore surprising that the government has chosen to implement changes which go well beyond their chosen experts’ recommendations. The government has made no secret of the fact that the purpose of this legislation has been to take back control. But in whose favour? The question we must ask is whether the removal of the existing checks and balances in our constitutional system represents real progress in the 21st century. Recent political revelations have demonstrated that even (if not especially) government is deserving scrutiny.

Samantha Davies is a barrister specialising in criminal law and human rights.