It seems that every week the government introduces new legislation to protect itself against its critics. The police bill silenced the protesters, the nationalities bill restricted asylum applications, and there will soon be an attack on the Human Rights Law in some form. But right now it is the turn of the judicial review.
Judicial review is one of the cornerstones of British freedom. It allows an individual to challenge the government in court. The name itself is boring enough, but the principle it establishes is deeply radical: a viable and equal control of the executive branch without restrictions. It gives everyone in society, including the most marginalized and ignored, the ability to bring the most powerful people in the country to court and have their case heard. People often talk about how proud they are to be British. Court review is one of the most compelling answers to that question.
Attacks on judicial review are not just an attack on a particular legal instrument. They are an attack on the concept of the rule of law and, in particular, on the notion that government should be restricted by it.
So it goes without saying that governments have judicial control. It’s not just the Boris Johnson administration. They are almost all of them.
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The last time this happened was under former Attorney General Chris Grayling, although his attempts were so predictably clumsy that he himself sabotaged them with little need for sustained opposition. This time it falls to the current attorney general, Robert Buckland, one of Johnson’s best ministers, but who is becoming increasingly a native of the Justice Department.
Government attempts to restrict judicial review generally take the form of something called an “expulsion clause.” They write a bit of legislation and then say that the judicial review has been “evicted” from challenging the decisions made under it.
So in 2000, for example, the Tony Blair government passed the Law regulating investigative powers, who did all sorts of pretty shady things in the name of national security. It established a Tribunal of Investigative Powers as a specialized body with jurisdiction to examine the conduct of security services and then tried to use a revocation clause to isolate the court from judicial scrutiny. Article 67 (8) of the Law says that “the decisions of the court … shall not be subject to appeal nor may they be challenged in any court.”
In 2019, that impeachment attempt came before the Supreme Court and the judges overthrew it by majority. By Lord Carnwath main judgment He said: “Ultimately, it is up to the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition is a natural application of the constitutional principle of the rule of law and an essential counterpart to the power of parliament to make laws. “
One of the problems the government had in the case was that the impeachment clause was very vague. Judicial review, the Supreme Court ruling concluded, “can only be excluded with the clearest and most explicit words.”
That is the context of what happened to the bill of judicial review and courts, which was published just before parliament went into recess. It is an attempt to create a new “clear and explicit” framework for impeachment clauses, so that the government can push the courts not to rule on individual cases.
The legislation had a long preparation. The real starting point was the Supreme Court ruling against the government when Johnson illegally suspended parliament in 2019. That left a sense of grievance and barely hidden resentment at number 10. The Tory Manifesto 2019 duly stated that “after Brexit we have to look at … the relationship between government, parliament and the courts.” This would imply ensuring that judicial review “is not abused.”
In July 2020, the government settled down an Independent Review of Administrative Law to explore judicial review reform. But the experts on the panel did not play the role that Buckland wanted them to do. Instead, they concluded that the judicial review was working well and recommended very few changes.
But there was a small ray of hope for the government. There were some minor areas where they thought they could be tweaked. More importantly, they suggested getting rid of Cart’s so-called court reviews.
Cart is a reference to a court case in which the Supreme Court ruled that immigration cases in Superior Court could sometimes be reviewed by Superior Court, so this was a possible dismissal clause, a form to close a legal challenge.
That recommendation really got the government’s attention. Buckland thinks he can turn the Cart’s ending into a framework for future kick-out clause initiatives, a proof of concept for new restrictions on judicial review.
While the bill was being published, gave a speech at the headquarters of Policy Exchange, a group of right-wing experts leading the indictment against so-called “judicial activism.” He said the car’s layout should be considered in terms of “what it can point the way to.” It was “a template or a prototype.” And then he added, threateningly: “There will be other proposals on the line that you may find more controversial.”
Richard Ekins, director of the Policy Exchange Judiciary Project, echoed that message, who was given space in the government’s own press release for the legislation to do the same. “The bill is a welcome first step in the larger project to restore the UK’s traditional political constitution,” he said. “It should be the beginning, but not the end, of the reform process.”
All of this was backed up by some extremely misleading evidence. The IRAL review, for example, indicated that only 0.22% of Cart’s court reviews were successful. That is nonsense, as legal experts subsequently he pointed.
The Home Office provided figures to the review indicating that the cost of a substantive judicial review hearing was £ 100,000 and that it spent £ 75 million in 2019/20 defending immigration and asylum judicial reviews. But in response to a Freedom of Information request from the Public Law Project, the Home Office later admitted that judicial review costs “vary considerably” and that “most cases do not reach £ 100,000”. Instead, it was simply “possible” for costs to reach that level.
The £ 75 million figure included the damages and adverse costs the department paid to the claimants when it lost. So the Home Office was, with astonishing brazenness, actually using its own illegal behavior and systemic flaws to argue against a legal system that would address them.
However, Buckland sealed the cart proposal on the invoice. The new bill establishes that “the Superior Court shall not be considered to have exceeded its powers for any error committed in making the decision” and that judicial review cannot be “related to the decision.”
So even if there is an error of law on the part of the Superior Court in an immigration case, the Superior Court judges cannot consider it. He has been removed from the attention of the court. There is a caveat where there has been a “fundamental violation of the principles of natural justice.” But even with that open wording, this will turn out to be a very restrictive move.
Buckland will now use this approach to reinforce previous rather sloppy efforts by the British government to secure expulsion clauses to conform to the new “clear and explicit” wording. “After legislating to implement an effective dismissal in relation to the judicial review of the car,” the Ministry of Justice saying, “The government intends to carry out an internal monitoring exercise to identify and review the other dismissal clauses that are currently in the statute book.” That will include areas such as the Investigative Powers Tribunal; all those areas where the courts had established the right to judicial review will now be subject to this attack.
But despite your best efforts, all of this has a limit. The reason the car kick-out clause works is because it still allows a previous court, in this case the Superior Court, to examine the case. What they have effectively done is limit the avenues of appeal. That’s dirty, but not an existential threat. In areas where a court has not examined the case, for example a standard judicial review of planning or environmental law, the Cart principle will not apply and the Buckland model will not work.
So it’s a relatively flaccid attack. It’s a gradual attempt at change rather than the kind of burned-out, reactionary legislation we’ve seen from Priti Patel. Honestly, most judicial review attorneys expected the attack to be much more damaging.
But regardless of the severity, the bill fits the exact pattern of government activity we are now used to from this supposedly ‘libertarian’ administration: a constant and perpetual attempt to silence or cripple the institutions that could restrict its power. The fact that it is limited is encouraging. But it’s depressing that it’s been tried at all and it seems certain there will be more to come.