Judicial review reform: A risk to the courts’ post-Brexit standing – Tom Snelling and Elif Acar

The government unveiled its proposals for reform of judicial review powers earlier this month.

The backdrop is a political desire to install clearer boundaries on the ability of the courts to review the lawfulness of government decisions after the public tensions between No10 and the Supreme Court over Brexit decision-making.

In addition to questions about the motivations for curbing legal challenges to political decisions, the proposed reforms raise concerns as to whether this could undermine the reputation of the English courts in the eyes of the international business community at a time of uncertainty (and, some would say, vulnerability) due to Brexit.

The reforms come as a result of the Lord Faulks review and propose to prevent appeals from the Upper Tribunal (often involving immigration cases) from being subject to judicial review in the High Court.

Additionally, the reforms will introduce an eight-week ‘cooling-off’ period in which quashing orders cannot be handed down by the court after a ruling that the government has acted unlawfully.

Potentially most controversial is the intention to bolster the effect of so-called ‘ouster clauses’, which identify areas that are not open to judicial review.

One factor that exacerbates the controversy about the reforms is that the government has gone beyond, and arguably overstated, the findings of the Faulks review (perhaps revealing a frustration that the review was more measured and less radical than Downing Street had expected).

Justice secretary Robert Buckland heralded the reforms as being how to “defend the judiciary from being drawn into political questions” and restore “balance” between Parliament and the courts – the inference being that, in recent years, the judiciary has overreached its role.

Tellingly, the Faulks review is presented as having “identified a growing tendency for the courts in judicial review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves”.

Although the independent review acknowledged concerns about such judicial overreach, it did not conclude that such concerns were justified. The panel found that “little significant advantage would be obtained by statutory codification” of the grounds for judicial review.

Additionally, it did not recommend amending the law on standing nor legislating to make additional subject areas non-justiciable.

Critics of the government are left able to deploy its apparent overstatement of the review’s findings to portray the reforms as a hobbling of the judiciary and, worse, an act of revenge for court rulings in the Gina Miller cases (that the executive could not initiate Brexit without Parliament’s blessing).

Many will recall the criticism faced by one of Mr Buckland’s predecessors for failing, swiftly and unequivocally, to condemn the Daily Mail‘s ‘Enemies of the People’ headline in response to an earlier Brexit court ruling.

It is right to ask whether judicial review has extended beyond its original purpose, with the effect that it hinders bold and iconoclastic policy-making, and leads to cases that are thinly disguised campaigning tools.

But a reduced ability to challenge government measures has wide-ranging implications, with unquestionable significance in, for example, immigration law and detention cases.

Recourse to judicial review is also important as a means of ensuring investor certainty and for businesses to protect their (and therefore their employees and shareholders’) rights, particularly when subject to far-reaching and sometimes poorly drafted regulation.

Restraints can be imposed ostensibly with a view to furthering a public policy goal, and it is judicial review that can assess whether these measures are proportionate, given the infringement of rights caused.

Recently, this has tested the evidence behind Covid-related constraints and the legality of decision-making about the production and distribution of PPE and vaccines during the pandemic.

The value the international business community places on judicial independence in the UK and a willingness to make the legally right, if not always politically expedient, decision has never been greater.

This is central to our future role in the international legal market and remaining a leading global centre for dispute resolution, post-Brexit. This is brought into sharper focus still given perceived threats to judicial freedom elsewhere (including in Hong Kong, since the national security law came into force).

There are legitimate boundaries as to how politicised the judiciary should be, given the separation of powers and the clear need for elected governments to give effect to policy commitments, especially at a time of national crisis.

However, judicial review is an important safeguard that ensures that public bodies and government authorities are held accountable.

It is vital that, after the public consultation on the proposed reforms closes on 29 April 2021, they are implemented in a way that respects this, the findings of the Faulks review, and protects the international standing of the UK’s judiciary.