Judicial review: expert panel to scrutinise whether use in UK is ‘off-balance’

Polly BotsfordMonday 26 October 2020

The panel’s launch follows two high-profile UK Supreme Court cases, each brought by judicial review, which both overturned significant ministerial decisions. These were (R (Miller) v Secretary of State for Exiting the European Union, on the need for a parliamentary vote to trigger Brexit, and R (Miller) v UK, on whether or not parliament could be prorogued.

Critics of judicial review argue that the claims were essentially about political questions and the courts should not have heard them. Prior to her appointment as the UK Attorney General, Suella Braverman QC said the Miller cases were ‘the latest examples of a chronic and steady encroachment by judges’ into politics. She concluded that ‘the delicate relationship between law and politics is off-balance.’

A feature of the United Kingdom’s constitutional system of pulleys and levers is that judges do decide cases ‘with political ramifications’, according to the current President of the Supreme Court, Lord Reed, in an October interview.

Joshua Rozenberg QC, the legal commentator, published a book on this subject – Enemies of the People? How Judges Shape Society – in April. He argues that judges do, in effect, ‘make law’ when they decide cases ‘and so shape our society’. Further, he considers that this is not a bad thing and that they do so along non-party lines.

The question then is what the UK wants from its constitutional arrangements.

One of the possible lines of reform would be to codify what should and should not be subject to judicial review and on what grounds a case could be brought. Australia, another common law jurisdiction and one specifically mentioned in the review panel’s terms of reference, has introduced some levels of codification in the past.

Mark Woods, Co-Chair of the IBA Access to Justice and Legal Aid Committee and Director of Tyler Tipping & Woods in Victoria, explains that ’this was not as a means of restricting judicial review, but to make it more efficient such as by creating more sophisticated levels of review’.

Australia has seen judicial review engaged to challenge government decisions on topics such as the environment. Dr Lisa Crawford, a senior lecturer in public law at the University of New South Wales, explains ‘there have been heated debates here on how environmental interest groups use judicial review to delay and disrupt development’.

Dr Crawford says this is known in Australia as ‘lawfare,’ the practice of ‘using judicial review as a political weapon to pursue ideological objectives’.

It’s not only the high-profile cases that are under government scrutiny in the UK panel’s review. It’s also about the volume of cases. As Geoffrey Cox QC, the former UK Attorney General, put it during questions in parliament, there are plenty of cases ‘that should perhaps never have been started’. The aim of reform, according to Cox, is to prevent the whole system being ‘clogged up with these applications’.

For this reason, a questionnaire has been sent by the panel to all government departments asking them to what extent judicial review interferes with civil servants’ ability to do their jobs effectively.

Judicial review statistics are revealing here. Court applications have risen over the years but only in one particular area of law: immigration. Ministry of Justice data from 2010 to 2019 shows that for non-immigration civil cases the number of applications has remained fairly consistent, at around 2,000 each year.

The immigration cases are markedly different, with the number of applications having risen, sometimes very steeply. According to a report, co-authored by Professor Robert Thomas at Manchester University and Dr Joe Tomlinson at King’s College, London, there were just under 5,000 claims lodged in 2000. The number of cases then peaked at 15,000 in 2013 and, though there has been a recent decrease, numbers have remained above 10,000 per year since then.

Speaking to Global Insight, Professor Thomas identifies a number of drivers causing the very high numbers of immigration applications which indicate that it is not just about judicial review of itself. Other factors, he explains, include changes in immigration policy or law, the lack of an alternative appeals process, or the role of a few ‘unscrupulous advisors’.

Additionally, these statistics refer to applications, not to the number of substantive cases. Claims that proceed to a full hearing represent only eight per cent of the total applications, according to the report. A high number of claims ‘are refused permission because the tribunal decides that they are unarguable. The use of template […] unparticularised grounds of challenge is a common […] feature.’

Many previous UK governments have tried to change the way judicial review operates in immigration cases, with little success. In the early 2000s for instance, an ‘ouster clause’ was proposed to completely dispose of the competence of the court to hear such cases. The proposal did not become law, however.

The Independent Review of Administrative Law is expected to report back by the end of 2020. If there are recommendations for change, this could represent a significant constitutional moment for the UK. This is particularly as, in Mark Woods’ view, where there is no written constitution against which legislation can be measured, as is the case in the UK, ‘only the courts can rein in parliament – and the ministers who sit in it’.