A discussion of the ongoing review into judicial review and human rights
This article is a long read concerning current events in administrative law.
A common political tactic is to use a bigger event that is currently distracting the public as cover to release potentially harmful or embarrassing information. Coronavirus is the distraction that the current government is using to mount an inquiry into judicial review. However, such a review should come as no surprise. It is clear that there has been mounting tension between the judiciary and the executive in recent years with successive governments being frustrated by what they see as excessive and expanding judicial interference in politics – the peak of this being the two Miller cases.
Miller No. 1 censured the executive individually giving notice of withdrawal to the EU under Article 50. Miller No. 2 found that the executive’s exercise of the prerogative power of prorogation was justiciable and that the recent prorogation (suspension) of Parliament had been unlawful in the circumstances. Following two landmark cases which embarrassed the government, retaliation was perhaps inevitable and this is it, as foreshadowed in the Conservative Manifesto of 2019.
Judicial review (JR) allows the decisions and actions of public bodies to be assessed by the courts. It is a strong legal method of holding political bodies to account for the decisions they make. The numerous common law grounds of JR ensure amongst other things that:
the public body actually had the power to make the decision in the first place and did not act outsides its powers (ultra vires);
the public body took into account relevant information (and disregarded irrelevant information);
procedural fairness has been upheld through fair hearings in the absence of bias; and
an irrational or unreasonable decision has not been come to.
JR is constitutionally fundamental – it enforces the rule of law, the separation of powers and works to protect citizens against the unchecked power of the state. In principle, JR protects those most vulnerable in society, as many reviews concern prison issues, asylum and immigration. Lord Chancellor Robert Buckland QC MP sums up its importance concisely in two quotations: “Judicial review will always be an essential part of our democratic constitution – protecting citizens from an overbearing state” and as a “precious check on government power”.
The panel (headed by Lord Faulkner QC) proposes to address the question as to whether reform of judicial review is justified. They will specifically consider:
whether the grounds of JR should be codified;
what issues should be deemed to be justiciable;
the available grounds of JR and available remedies; and
further procedural reforms such as timings, the appeal process, costs and funding.
What is set out above reflects the “official” government proposal as set out on their webpage. However, there is perhaps an underlying motive in the government proposing such a reform which stems from the recent shift to a more legal constitution and the executive feeling that its power is becoming more restricted, while that of the judiciary grows. The government is looking to extend its own powers, reduce that of the judiciary and ensure that there is less scrutiny over its actions and decisions. Or, as the government likes to phrase it, “[a] need for effective and efficient government”.
Taking into account the underlying motive, the actual agenda of the government may be:
Codifying the grounds of JR but in the process of doing so narrowing down or removing the scope of common law grounds.
Restricting the scope of what is deemed to be justiciable, thereby decreasing the extent to which the courts can work to hold public authorities (specifically the executive) to account.
Procedural alterations that reduce the number of reviews being brought, e.g. increasing the costs of mounting a review, not allowing review to be raised as a defence in other proceedings, limiting the ability to appeal in review cases and reducing who can be given ‘standing’ in a judicial review case.
If such radical reforms were implemented there would be less scrutiny of executive actions and decisions. This would mean a lack of legal restriction upon executive power which could leave Parliament and individuals with a lack of protection. This is especially concerning with the Conservative’s hard-line attitude towards prisoners and immigrants as it may leave such societal groups in a more vulnerable position. Moreover, the procedural reforms would pose an affront to the fundamental rule of law ideas such as access to court (increasing costs of mounting a review).
Although this is not necessarily the outcome that will be reached, it is arguable that current governmental intentions are an affront to key constitutional principles of the rule of law and the separation of powers. Though efficient political decision making and effective governance are important, they should not be pursued to the extent that accountability, good governance and fundamental constitutional principles are undermined.
However, it is unlikely that this is the full extent of the government’s intentions. Next in the firing line is likely to be the Human Rights Act 1998 (HRA). The Conservative party has promised a ‘Constitution, Democracy and Rights’ commission. Although such a commission has not been brought into existence, the review into judicial review is the first attempt at bringing the desired constitutional reform and increased politicisation by the government. This is likely to be followed by a similar action towards human rights, with the Conservative Manifesto promising to ‘update the Human Rights Act’ to promote ‘national security and an effective government’ and a new ‘British Bill of Rights’ being previously suggested.
The HRA gives domestic effect to the European Convention of Human Rights to which the UK was a signatory in 1950. Up until the enactment of the HRA, as a result of the dualist system, although the UK was bound to the ECHR convention rights in international law they were not enshrined in domestic law. Following the HRA individuals can now hold public authorities accountable for an infringement of convention rights before national courts, instead of relying upon the Strasbourg court or the common law which was at this point framed more in terms of protecting civil liberties rather than individual rights. The HRA has been regarded as the “cornerstone of the new constitution” (Bangdor) which shifted the UK towards a more legal constitution. The judiciary gained the ability to interpret legislation “so far as it is possible” (which gives a very wide remit) to be compatible with convention rights under s. 3 HRA as well as being able to make a declaration of incompatibility under s. 4 HRA if the former approach cannot be achieved – thereby pressurising the changing or removing of the piece of legislation.
The HRA is another way to legally hold political institutions, especially the executive, to account and allow the protection of citizen’s rights preventing unjust intrusion by an overbearing state. However, it has been considered by many governments as annoying, especially regarding the ‘war on terror’ as well as regarding their treatment of prisoners and asylum seekers. Furthermore, it has been deemed to be an affront to Parliamentary sovereignty. Mark Elliott in his ‘Public law for everyone’ writings highlights that this view is shared by Lord Faulks QC (who is also chairing the panel on judicial review) who has previously stated amongst other things that there needs to be “full fat” reform of human rights and that the UK should “leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and Parliament to protect human rights”. This would be a dangerous move – not only does removing the HRA and no longer being a signatory to the ECHR reduce the strength of the judiciary in the protection of rights in itself but coupling this with the reduction in the scope of judicial review could result in overbearing executive power.
We recommend that you pay close attention to the findings of the Judicial Review Panel as to whether reform is needed and any further ideas by the government that propose to “reform” the UK’s constitution to make governance more “efficient”. Although much of what has been discussed is speculative, it should be recognised as a real threat that could potentially materialise and create radical constitutional change and threaten the fundamental rule of law, separation of powers and human rights issues.
This article was written by the team at The Student Lawyer, a website with the core aim of being free repository of information for future lawyers. The Student Lawyer provides aspiring solicitors and barristers with informative articles, videos and podcasts containing everything you’ll need to make chasing down that dream career in law that little bit easier.