Government proposals for a new law to limit the powers of judicial reviews could “eviscerate” and “gut” legal challenges and hamper the power of the courts to hold ministers to account, according to members of the legal profession.
Last week’s Queen’s Speech contained details of a judicial review bill designed to “restore the balance of power between the executive, legislature and the courts”. Government officials said the aim was “incremental constitutional restoration, not revolution”.
Judicial review, which allows government decision making to be challenged in the courts, has been in the crosshairs of some Conservative MPs ever since the Supreme Court ruled in 2019 that prime minister Boris Johnson had acted unlawfully by proroguing parliament for five weeks.
The 2019 Tory party election manifesto promised to examine possible reform and ensure that judicial review was not being misused or “abused to conduct politics by another means”.
The government has faced a number of judicial review challenges in recent months over its award of contracts during the Covid-19 pandemic. On Tuesday it faces a high profile lawsuit brought by the Good Law Project over its decision to award £650m of personal protective equipment contracts to three companies, which the campaign group alleges breached its duties of transparency.
The announcement of the bill came two weeks after Lord Chancellor Robert Buckland closed a public consultation on the process. And although details of the upcoming bill, to be published by the end of July, are so far unclear the legal profession and campaign groups have already raised concerns.
An independent panel led by Lord Edward Faulks, a former justice minister, concluded in March that only modest changes were needed for judicial review.
But the government used the Faulks report as evidence to press ahead with its own consultation envisaging more far-reaching reforms in England and Wales, which “were not recommended by the [Faulks] panel” but would “complement” them.
Buckland’s allies said he was considering how to proceed ahead of publication of detailed legislation. But they insisted the minister was listening to concerns from the legal profession.
I. Stephanie Boyce, president of the Law Society, said the most controversial proposals outlined in the consultation “would allow unlawful acts by government or public bodies to be untouched or untouchable” and “risk taking power away from citizens”.
Liberty, the human rights group, said in its response to the consultation that the government appeared to have “mischaracterised” Faulks’s findings “in order to provide cover to its proposed reforms” and says it seems they “are part of a concerted effort to evade both political and judicial scrutiny”.
Faulks told the Financial Times that his panel had concluded that judicial review did not need to be altered substantially — despite a handful of high profile court rulings. “There were one or two decisions we thought were wrong by the higher courts but we didn’t think there was a case to change judicial review radically . . . ” he said.
Sir Jonathan Jones QC, former head of the government legal service and now a senior consultant at law firm Linklaters, said he believed from the details given so far that the government may not be planning to go much further than the Faulks review but cautioned that much will depend on the details of the bill.
“There was a sense that the government had an appetite for more radical reform and it is still consulting on additional changes. If proceeded with, these could be concerning,” Jones said.
The government consultation contained a number of proposals that were not recommended by Faulks. These include introducing limits to past compensation paid to people who have won a judicial review challenge.
The justice secretary’s aides said he was looking at whether judges should have a “range of options” — including ordering retrospective compensation — when deciding on remedies. A tougher alternative would see a presumption in favour of prospective-only compensation.
But Faulks said that allowing judges to make prospective only remedies would “need to be considered very carefully” and government proposals “could go too far the other way potentially”, Faulks added.
Jones has warned that the proposals on prospective only remedies “could cause serious injustice, as the claimant would not get redress for the damage they have already sustained or the benefit they have been denied”.
Other non-Faulks proposals contained in the consultation included a toughening up of “ouster clauses” used in primary legislation. These controversial clauses — which have been included in parliamentary statutes for more than 70 years — prevent the courts from examining the decision-making of government bodies.
The 2016 judicial review brought by businesswoman Gina Miller challenging the government over whether parliament should trigger the Article 50 process of leaving the EU and the 2019 judicial review over the decision to prorogue parliament for five weeks may have grabbed the headlines but most judicial reviews do not deal with constitutional issues. Instead they involve individuals challenging decisions made by government or local councils about their entitlement to welfare benefits or social care.
Catherine Callaghan QC, vice-chair of the Constitutional and Administrative Law Association, said of the consultation proposals: “It looks as if the proposed reforms are procedural and quite minor but these are fundamental and significant and could absolutely gut judicial review and denude it of the power to hold the government to account,” she said.
The consultation has alarmed academics. Mark Elliott, professor of public law at the University of Cambridge, has described the consultation proposals as “astonishing” and said they risked “eviscerating judicial review”. Writing on the Public Law for Everyone website, he said the “proposals amount to nothing other than an attempt to launch an assault on judicial review under the cover of promoting the rule of law. Even in a post-truth age, such constitutional gaslighting cannot be allowed to go unchallenged.”
Buckland’s consultation did include Faulks’s two main recommendations: namely that Upper Tribunal cases — often involving immigration — should not be appealed to the High Court and that judges should be able to delay the quashing of a government decision, which would allow time for government to rectify policy errors.
Ministers are keen that a big project — for example a new motorway — should not be put on hold for months or longer simply because a judicial review identified a “technical error” in an impact assessment.
The Ministry of Justice said: “The government made a manifesto commitment to ensure the judicial review process is not open to abuse or delay, or used to conduct politics by another means. This bill delivers on that pledge and its measures will be informed by the responses to our consultation.”