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Judicial Review - Does it need reforming?

Judicial Review - Does it need reforming?

 

Does Judicial Review need changing?

On 31 July 2020 the Government launched an independent review to examine whether there is a need to reform the judicial review process in the UK.

There had been pledges in the Conservative party manifesto to ensure the process of judicial review doesn’t give rise to endless delays or be used to conduct politics.

The review aims to consider:

  • whether judicial review has encroached too far into the work of the executive branch of government

  • whether the role of judges has expanded too far, particularly in the field of human rights, where the Courts have taken a lead in developing “constitutional” rights.

Background to Judicial Review

According to Law Gazette news from 6th August, two high-profile Brexit debate examples of the kind of case the Government is targeting with this review are Miller (No. 1) [2017] UKSC 5 and Miller (No.2) [2019] UKSC 41.

  • In Miller (No. 1), brought by British businesswoman and campaigner Gina Miller, the key question was whether the Prime Minister had the power to withdraw the UK from the EU treaties without Parliamentary approval. The UK Supreme Court considered it had power to rule on this question of authority, and it went on to side against the Government - requiring Parliamentary legislation to be passed. The Court’s decision was put down both to Parliamentary Sovereignty and the principle of legality.

  • In Miller (No. 2), the question was whether the Prime Minister’s Prorogation (suspension) of Parliament for five weeks from 9 September – 14 October 2019 was lawful. This move had been denounced by opponents as designed to prevent MPs from blocking the UK’s Brexit deal. The Supreme Court again found that it had the power to rule on this question. It went on to find the prorogation of Parliament had been unlawful and void, and Parliament resumed shortly thereafter, thus thwarting the executive’s plans.

The review of the judicial review process will ultimately help to clarify the scope of the decision-making powers of the UK Courts, Parliament and cases relating to executive powers. Four questions to be considered by the wide-ranging review are:

  1. Whether the terms of Judicial Review should be written into law

  2. Whether certain executive decisions should be decided on by judges

  3. Which grounds and remedies should be available in claims brought against the government

  4. Any further procedural reforms to Judicial Review, such as timings and the appeal process

 

The review and panel of experts will be chaired by Lord Edward Faulks QC, who is expected to report back later in 2020.

Any recommendations for reform would then be put forward for consideration by Lord Chancellor (Robert Buckland QC) and Michael Gove as Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office.

Read the Gazette’s full story here

Head of Dispute Resolution at Lawson-West Solicitors in Leicester, Solicitor Ruth Jewell, adds to the discussion:

“Separation of powers is an ingrained principle in the British constitution. Parliament makes the laws and the Judiciary upholds those laws. The current Judicial Review process seems to blur the lines of separation. The review of judicial review aims to clarify the areas of doubt that exist and the steps to take. The Brexit Miller cases identified areas in English law that were contentious, causing months of further discussion, debate and delay. The hope is that the outcome of the review of judicial review later this year will provide the essential recommendations and reforms needed to stop future blurring of these lines at the highest level of power and this is a positive thing.”

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What is meant by Judicial Review?

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. The aim is to supervise the legislative and executive branches when the latter exceed their authority. 

Ruth Jewell, commercial dispute resolution and litigation solicitor

Ruth Jewell r.jewell@lawson-west.co.uk

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