The UK government has recently introduced a bill that aims to reform the process of judicial review, which is a legal mechanism that allows individuals and groups to challenge the lawfulness of decisions or actions taken by public authorities, such as ministers, local councils, or regulators. Judicial review is a vital tool for ensuring that the government and other public bodies act within the limits of their powers and respect the rights and interests of the people they serve.
However, the Judicial Review and Courts Bill, which was published on July 21, 2021, has sparked a lot of controversy and criticism from various quarters, including lawyers, judges, academics, civil society organisations, and opposition parties. They argue that the bill is an attempt by the government to undermine the independence and authority of the judiciary, and to limit the ability of the public to hold the government to account for its actions.
The bill contains several provisions that would restrict the scope and effectiveness of judicial review, and give the government more discretion and power over the outcomes of legal challenges. Some of the most contentious proposals are.
- Giving judges the power to suspend or limit the effect of quashing orders, which are orders that invalidate unlawful decisions or actions by public authorities. This means that even if a court finds that a public authority has acted unlawfully, it may not have to remedy or reverse its decision or action, or it may only have to do so partially or temporarily.
- Giving ministers the power to introduce ouster clauses, which are clauses that exclude certain types of decisions or actions by public authorities from judicial review. This means that the government could shield itself from legal scrutiny by declaring that some of its decisions or actions are not subject to judicial review, or that the courts have no jurisdiction to review them.
- Removing the power of the courts to make Cart judgments, which are judgments that allow individuals to challenge the refusal of permission to bring a judicial review by the Upper Tribunal, which is a specialist court that deals with certain types of cases, such as immigration and social security. This means that individuals who are denied permission to bring a judicial review by the Upper Tribunal would have no further recourse to challenge that decision, even if it is wrong or unfair.
The government claims that these reforms are necessary to prevent the abuse and misuse of judicial review, to reduce the costs and delays of litigation, and to protect the sovereignty of Parliament and the executive. However, these claims are not supported by evidence or logic. On the contrary, the bill would have the following negative consequences.
- It would undermine the rule of law, which is the principle that everyone, including the government, is subject to the law and must abide by it. By giving the government more power to avoid or limit the consequences of its unlawful actions, and to exclude some of its actions from judicial review, the bill would erode the checks and balances that ensure that the government acts lawfully and does not abuse its power.
- It would weaken the protection of human rights, which are the fundamental rights and freedoms that belong to every person. By restricting the scope and effectiveness of judicial review, the bill would make it harder for individuals and groups to challenge the decisions or actions of public authorities that violate or threaten their human rights, such as the right to life, the right to a fair trial, or the right to privacy.
- It would harm the public interest, which is the common good or welfare of the society. By limiting the ability of the public to hold the government to account for its actions, the bill would reduce the transparency and accountability of the government, and undermine the public confidence and trust in the government and the justice system. It would also discourage the government from making better and more lawful decisions, and from learning from its mistakes.
The Judicial Review and Courts Bill is a threat to democracy and justice, and it should be opposed and rejected by anyone who cares about the rule of law, human rights, and the public interest. Judicial review is not a weapon to be used against the government, but a shield to protect the people from the government. It is not a problem to be solved, but a solution to be preserved.
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