Judicial review – friend or foe?

The Government announced on 31st July 2020 that an independent panel has been asked to look at judicial review to consider whether it should be reformed.

What is Judicial Review?

Judicial review is the legal process in which the Administrative Court (a branch of the High Court) is asked to ‘review’ a decision by a public body. Its purpose is to ensure that there is independent judicial oversight of public decision-making to ensure the public body has acted lawfully and fairly.

Judicial review is a remedy of last resort. There are strict rules about when a claim can be brought and all cases require permission from a judge (who will look at the claim and the decision under challenge, as well as any response to the claim from the public body) before they are allowed to proceed. Permission will only be granted if the Court considers that there is an arguable ground for judicial review.

What decisions can be challenged?

Decisions of government ministers and departments, industry regulators, local authorities and other public bodies can be susceptible to judicial review. In deciding whether a particular act or decision is judicially reviewable, the Courts will look at the nature of the act or decision being challenged rather than on the identity of the body in question or the source of its powers.

Examples of the common types of decisions that we have challenged successfully by way of judicial review include:

• The lawfulness of a local authority’s housing allocation scheme, which unlawfully discriminated against homeless refugees.
• The decision of a local housing authority not to accommodate a vulnerable homeless client with a dependent child following a homeless application.
• The decision of a local authority that an unaccompanied asylum seeker in their area is an adult when claiming to be a child.
• A significant delay by the Department for Working & Pensions to pay disability benefits to an entitled applicant.
• An assessment by a local authority that our client was not destitute, depriving her and her dependent children of accommodation and financial support.
• Significant delay by the Home Office in providing asylum support (accommodation and subsistence) to a vulnerable asylum seeker.
• The provision of unsuitable accommodation by a local housing authority for a disabled client.

In all cases above we have a desperate and vulnerable client who urgently needed assistance to secure some form of support from the state. This is support that they were, by law, entitled to, but which had been denied by those tasked with making decisions in their respective cases.

What is the purpose of the Government review?

The Government has asked for a review to consider the types of decisions that may be challenged by judicial review, the grounds of such challenges, and the remedies that can be granted by the Court when public bodies are found to have acted unlawfully.

Should we be concerned?

We should all be concerned at overt or implicit attempts by those in power to reduce or otherwise limit the rights of citizens to question or challenge their use of power. It is therefore important to be sceptical of the purpose of this review. It follows a number of key cases that have seen high profile decisions declared unlawful by the Courts. In 2019 we had a landmark Supreme Court decision concerning the Prime Minister’s prorogation of Parliament, which was declared unlawful by a unanimous bench of the country’s most senior judges. The Government’s defeat was met with strong criticism from the executive, and there followed claims to sort out “political rulings” made by judges.

Law and Politics Collide

There is a worrying trend to criticise the decisions of judges – in the media, and sometimes even by senior politicians, often on party-political issues. Very often those criticising have not understood the reasons for the decision they don’t like, nor have they actually read the judgments. We have an independent judiciary and a robust appellate process that protects against partiality or partisan decision-making. Judges are experts in the law and apply the law to the case before them. There is no evidence to support claims that they have strayed beyond their mandate when looking at the decisions of public bodies.

As a public law solicitor, I know how difficult it is to get permission in a claim for judicial review. Clients face strict time-limits to bring a claim (they must do so within 3 months of the decision in question). If they are reliant on legal aid to bring the claim (as all of my clients have been) there is a difficult process to obtain funding, and often funding is refused incorrectly. As solicitors we carefully consider the merits of the claim, and this is then looked at again by a specialist barrister. Put simply, clearly unmeritorious cases will not be brought. Where we think a client’s case is arguable, we issue the claim at risk because if the Court does not grant permission we will not be paid for the work we have done in preparing the claim. It is wrong (and insulting) for the Government to imply that the Courts are inundated with clearly unmeritorious or unarguable claims.

Sometimes the law and politics collide very publicly, as with the prorogation litigation. Judicial review will often require judges to examine decisions made by political figures, or at decisions or policies that stem from political decisions. Judges will only be concerned with the lawfulness of the decision under challenge and they are not interested in the relative merits of a policy or of the politics surrounding it generally.

I am particularly concerned that the panel is not independent. It is chaired by Lord Faulks QC, a Conservative peer who is vocal about his opposition to the prorogation decision and has written extensively on the extent of judicial power. I hope that the remainder of the panel of legal academics and lawyers will undertake this review independently, whatever the underlying basis for the Government to have instigated this review.

In most cases the extremely unlawful (and most shocking) decisions never reach the public domain because the threat of judicial review is enough to require withdrawal of the decision before getting to Court. This prompts a lawful decision to be taken by the offending public body. Eroding rights by limiting judicial review will only serve to encourage unlawful decision-making at all levels. In these uncertain times, where the most vulnerable in society are most likely to have the greatest need for help and support from public authorities, it is essential that judicial review remains accessible and a robust to check improper use of power. It is surely the friend of a lawful and democratic civilised society.

To speak with Alex McMahon or another member of the Housing and Social Care team, please contact us on 020 7485 8811 or complete an online enquiry form.