Justice Secretary Dominic Raab plans to make it harder to get legal remedies against the government, a leaked document suggests. But what is judicial review and why is the government determined to reform it?
What is judicial review?
A judicial review is a legal proceeding in which a judge reviews the legality of an action or decision by a public body such as the government, local council, police force or NHS trust. This involves a claimant challenging the manner in which a decision was made by an official or minister and determining whether that person erred in law in making the decision.
Why is the government unhappy with judicial review?
Ministers did not appreciate losing lawsuits or even being challenged. There have been attacks on “leftist lawyers” and allegations that judges have overstepped their bounds. Two of the most notorious judicial reviews against the government concerned Brexit, whether it could trigger Article 50 and the prorogation of parliament respectively. More recently, he became angry at the questioning of his policy of sending migrants to Rwanda.
What did he seek to do about it?
In its latest election manifesto, the Conservative Party pledged to end the “abuse” of judicial review. The government handpicked a group of six experts to conduct a review of it, but was accused of misrepresenting their findings. While the panel affirmed the importance of judicial review and advised against “wide-ranging legislation”, in launching a public consultation after its release, the Justice Department said the panel found that the courts ” increasingly exceeded the powers of judicial review”.
The language used by the Department of Justice sparked fears about what was to come, but ultimately the changes contained in the Judicial Review and Courts Act, which came into effect Friday, July 15, were generally considered to have a modest impact. That’s not to say they were uncontroversial, with the end of “Cart” judicial reviews – appeals against court rulings primarily in immigration/asylum and social security cases – criticized by the likes of Liberty and the Public Law Project.
Why is he considering other changes?
There was a widespread perception that many in government did not believe the judicial review reforms were going far enough and that is why Robert Buckland QC was sacked as Lord Chancellor and Justice Secretary and replaced by Dominic Raab. The plans contained in the leaked document have an impression of unfinished business. Raab has already proposed scrapping the Human Rights Act and replacing it with a British Bill of Rights, which would also limit government accountability by denying some people hitherto universal protections.
What are the judges saying?
By convention, judges are prohibited from commenting on government policy or legislation. However, the All-Party Parliamentary Group on Democracy and Constitution (APPGDC) accused ministers of acting in a “constitutionally unnecessary and inappropriate manner” by questioning the legitimacy of judges and gave the impression that recent decisions Supreme Court rulings favorable to the government might have been a response to political pressure. The head of the judiciary in England and Wales, Lord Burnett, urged Raab to protect the judiciary from attacks by his colleagues. MP Geraint Davies, chairman of the APPGDC, said Raab was complicit, saying the role of Lord Chancellor had become “a political springboard from which to fire shots at the judiciary”.