The Law Society has set out six fundamental principles of judicial review that it says the Independent Review of Administrative Law (IRAL) “must protect”, arguing that judicial review is “a pillar of democracy and a vital check on power”.
The IRAL was set up in July this year and is chaired by former government minister Lord Faulks QC.
Chancery Lane said: “There are legitimate questions as to whether improvements can be made to judicial review so that it functions more effectively and keeps the focus on testing the lawfulness of decisions.
“However, judicial review must continue to be available to provide a vital check on executive power, whichever the government of the day, and ensure accountability of state authorities. It’s a limited but important legal process in a modern democracy.”
The Law Society’s “fundamental principles”, which it said should be at the heart of any proposals for reform, are as follows:
Maintaining checks and balances
The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the law.
Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be weakened.
Its essential contribution to upholding the rule of law and principles of democracy within the broader constitutional system must not be diminished.
Guaranteeing that it remains an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators according to the laws made by parliament must be a cornerstone of any possible reform.
Judicial review brings law and politics into close contact. A mature democracy must be prepared to deal with these tensions.
Judges must be free to exercise their duties in judicial review without fear or favour, away from political considerations and criticism, and without being assumed to have an agenda beyond their role in upholding the law, so that they can fulfil their constitutional role and effectively enforce the rights of individuals and organisations.
Judicial review is concerned with decision-making by government, public bodies and regulators, and so must be available to all who are affected by those decisions.
This includes citizens and non-citizens, when relevant, such as immigration cases or when a company has business interests in the UK.
Organisations such as charities or trade unions should also be able to act, within reasonable limits, in the interests of the people, bodies or issues they represent by initiating or intervening in judicial review claims.
Accessibility and affordability
There should not be excessive procedural hurdles which act as a barrier to bringing a claim. The need for prompt resolution and sufficient opportunity to pursue a claim must be appropriately balanced.
To be fully accessible, bringing a judicial review claim must also be affordable. Where individuals lack their own financial means, adequate levels of legal aid must be provided to ensure equal access to the courts to enforce their rights. Costs awards and court fees must not be so punitive or unduly burdensome that they prevent claims being brought.
As judicial review concerns decisions made by public bodies, it often touches on decisions which may be political or seen as political. As the remit of the state has expanded, so too has the breadth of decisions subject to judicial review.
It is not the role of courts to second guess political decisions and judicial review should not encroach upon the legitimate use of state power. Judges are sensitive to this and they can and routinely do make decisions about what is outside the scope of judicial review.
However, there should be no artificial or inconsistent restrictions upon the type of decisions that can be reviewed. Where there are legal questions the court should rightly be able to decide these and certain issues, or categories of issues, should not be precluded from this. Given the imbalance of power between individuals and the state it’s important that people have a meaningful ability to challenge decisions which affect their lives and legal rights to ensure these have been made lawfully.
In order for judicial review to operate effectively as a remedy of last resort, there must be adequate alternative mechanisms in place for people to assert their rights.
The circumstances of judicial review cases are wide-ranging. What will be a fair outcome in one will not necessarily be so in another.
Judges must have a range of remedies at their disposal and discretion to award these to ensure that justice is meaningfully done.
The Law Society is conducting a survey to inform its response to the IRAL’s call for evidence. This closes on 8 October.