The ability to hold an elected government to account is a central pillar of a democracy. Sadly, the UK government seems determined to erode it. Its latest attempt to evade scrutiny involves proposals to enfeeble legal challenges against government decision-making.
A consultation to overhaul judicial reviews in England and Wales, which closed last week, is yet more evidence of the Conservative government’s contempt for the separation of powers in general, and for the judiciary in particular. The latter sparked the executive’s ire when it overturned the contentious decision by prime minister Boris Johnson to prorogue parliament in 2019, a move critics suspected was an attempt to prevent parliament from legislating against a no-deal Brexit. The Supreme Court’s subsequent decision, after a judicial review, turned on the essence of the UK’s separation of powers.
Proponents of reform seek to limit the over-reach of unelected judges into the political realm. There are things wrong with judicial reviews — just not what the government claims. It commissioned Lord Edward Faulks, a former justice minister, last year to review the reviews. The Faulks report contained sensible reform recommendations but cautioned against an overhaul. The government then used his report as evidence that the system needed wholesale change to “defend the judiciary from being drawn into political questions”, as justice secretary Robert Buckland described it when he launched the government’s consultation. A more cynical reading would be that the plans are an attempt to defend politicians from judicial questions.
Among the more objectionable of the government’s proposals are allowing increased use of “ouster clauses”, provisions in legislation that limit the courts’ ability to scrutinise particular matters. The Faulks report, by contrast, specifically cautioned against the widespread use of such devices. The government is also considering giving judges discretion to deny retrospective compensation to people who have successfully brought a judicial review — a rebuff to those who have suffered injustice for years.
Judicial reviews are not only used to hold the government to account, but also to challenge decision-making and process by public bodies including local councils. It is at this level that changes to the judicial review process may be most keenly felt — by ordinary and vulnerable people fighting decisions that affect their daily lives, rather than high-level constitutional debates.
The government does have a point when it argues that large amounts of court time and money are being tied up fighting last-minute immigration claims. However, the Faulks report addresses this: he recommended that there be no automatic right to review decisions from immigration appeals tribunals, getting rid of a second layer of legal challenge. Only a small minority succeed but cases have to be heard.
Judicial reviews were already streamlined in 2015. The government is also taking steps to avoid a repeat of its 2019 Supreme Court defeat through the repeal of the Fixed-Term Parliaments Act, which could stop courts reviewing government decisions taken by “royal prerogative”, powers traditionally retained by the monarch such as suspending parliament on the prime minister’s advice.
The government has a big majority and was elected on a manifesto that included constitutional reform, to address questions that were prompted by, or perhaps helped cause, the Brexit referendum. It is entitled to make whatever legislative changes it chooses. But if it does so in a proper way it need not fear the scrutiny of the courts.