Leading City law firm and communications practice predict growth in judicial review despite Government efforts to clamp down

Use of judicial review is likely to continue to grow despite Government efforts to curb it, a paper from law firm Linklaters and strategic communications practice DRD Partnership has argued.

The two organisations said in A legal and political paradox: how a government determined to restrict judicial review ended up expanding it that while the Government appeared “desperate to rein in judicial review”, political and legal factors meant the reverse had happened.

Although the 2019 Conservative manifesto said it would prevent judicial review being “abused to conduct politics by another means”, there had been a major expansion.

This was in part because of the Government being a litigant, for example in its challenge to the Covid Inquiry’s demands for former prime minister Boris Johnson’s WhatsApp messages.

The paper, written by Sir Jonathan Jones KC, Alex Fawke and Ed Bowie, said: “The number of cases has remained high despite the government's reforms. In fact, the most recent data show a substantial increase in non-immigration judicial review claims, despite the government’s efforts to curtail them.”

There were some 550 judicial reviews a year in the early 1980s, but were now almost a many in each quarter, driven by both short and long term factors.

Short term drivers included Brexit, which had brought the relocation of a vast number of decisions from Brussels to Whitehall, covering fields in which the UK lacked recent experience.

“Inevitably, picking up hugely expanded roles in a short timeframe resulted in more incorrect, or at least more challengeable, decision-making,” the paper said.

“The manner in which Brexit was carried out exacerbated this, particularly in its speed and the lack of a clear endgame: policies were prepared, and decisions taken, without knowing what the UK’s future relationship with the EU would be. The civil service was sometimes asked to carry out, in a matter of months, law reform projects that would ordinarily take years.”

This meant it had been “unsurprising that the detail of those laws and regulatory regimes – established under circumstances that could hardly be described as ideal – will need to be tested in the courts.”

Judicial review had also been encouraged by political instability after five prime ministers in eight years, eight justice secretaries, seven chancellors of the exchequer and seven secretaries of state for business.

The authors said: “A lack of experience at the top matters, especially when it is combined with a fraying of relationships between ministers and civil servants (referred to derisively by some ministers and political advisers as ‘the blob’), and scepticism of official advice.”

Hurried attempts to implement policies supposedly designed to win public support - such as on ‘small boats’ and climate change - were not “a recipe for decision-making that is robust against legal challenge”.

Over the longer term, factors that could encourage the use of judicial review included large tech companies becoming subject to regulatory decisions by the Competition and Markets Authority's Digital Markets Unit, “which are likely to be subject to judicial review”.

Tech companies will also have to grapple with the Online Safety Act, which provides for judicial review as the mechanism for challenging its decisions.

Use of the National Security and Investment Act to block certain investments, could too see objectors use judicial review.

The paper also said climate change and the spending, building and behavioural changes which decarbonisation will require “represent an immense challenge, and the state will be at the heart of it. Its decisions will create winners and losers”, with the latter likely to resort to the courts.

Governments of any colour will be forced to think creatively about bridging the gap between expectations of public services and what the state can afford and deliver, with the reshaping of these services likely to bring challenges.

Linklaters and DRD Partnership concluded: “As long as the law confers rights and imposes duties, it is the role of the courts, through judicial review, to protect those rights and enforce those duties.

“The courts’ ability to review government decisions is fundamental to the rule of law. It is particularly important in political systems where power is highly concentrated, as it is in the UK. When scrutiny makes life uncomfortable for government – that is the point of it. And there is every reason to think that judicial review will remain a necessary tool to do just that.”

Mark Smulian