Why judicial review matters, and why Grayling’s attack on it is wrong-headed

Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.

It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern.

For judicial review is where the law meets politics: judicial review polices the extent to which those with state power can get away with things before the courts can intervene. Weakening judicial review protects the state at the expense of the ruled.

The nature of judicial review

In the jurisdiction of England and Wales, judicial review is the process that allows the high court in London to prevent all public officials – including politicians – from acting outside their legal powers. It means that public officials know that there are things they cannot do without risking a challenge in the courts. It does not stop all unlawful behaviour (and here “unlawful” means “not in accordance with the relevant law” rather than breaches of the criminal law) but it does act as long-stop for a good deal of it.

The purpose of judicial review is not to examine the merits of a decision or a rule. The question for the court is simple: was the decision or rule lawfully open to the public body to make? Decisions and rules can be wrong or unworkable without them being unlawful. Only the latter matters in judicial review.

The decision or rule can be appalling on its merits, but it is no business of the court to quash it on normative – or even practical – grounds. Such wrongs can be addressed though other routes: you can complain or appeal, and you may be able to vote or campaign or lobby against what you do not like.

So what is meant by a decision or rule being made “lawfully”? Here, there are three main requirements.

First, it means that the official or politician has acted within the boundaries of their legal powers. These parameters are often set out in an act of parliament or some other legal instrument. This is generally known by lawyers as the “vires” rule.

Second, it means that the decision or rule has to be made fairly and impartially: there should be no actual or apparent bias and those with a legitimate interest should have an appropriate say. As an extension of this, the decision or rule also cannot be so unreasonable that no person having proper regard to relevant factors could have come up with it.

Third, and exceptionally, the decision or rule should not disproportionately interfere with the various rights that natural or legal persons (such as companies) have by reason of the Human Rights Act or the European Communities Act.

These requirements are imposed by what lawyers call “public law” – the special law which governs state actions – and public law is usually enforced by judicial review. It is mainly by public law being enforced through judicial reviews that the fine-sounding phrase “the rule of law” has any substance in our society.

The usefulness of judicial review

So much for the law; what about the practice? What makes judicial review especially useful in our political system is how it affects governmental action (and inactions) on a routine basis.

As it can be readily imagined, official decisions and rules which are made fairly and impartially within the markers of the relevant legislation and with regard to fundamental rights tend to be better than those made in any slipshod and arbitrary way. Public law thereby provides discipline to those charged with exercising the powers of the state.

This is not to say that most public officials want to act unlawfully. However, within England and Wales (and also the separate jurisdictions of Scotland and Northern Ireland) other forms of accountability remain weak or non-existent. Public law provides a guide to officials who care about getting things right. For those officials who do not care, public law can act as a check. And if the principles of public law have not been followed, the high court can bring the shoddiness to light.

The examples are numerous. In the Rashid case, a decision to deport an asylum-seeker was quashed because it was contrary to the home office’s own policy of which officials were ignorant (“flagrant and prolonged incompetence” said the judge at paragraph 53). In the Quila case, the judge held the rule-making process on forced marriages to be unlawful because no proper regard had been made on the effects parties to unforced marriages. In Lumba, the detention of foreign nationals pending deportation was held unlawful because carried out in accordance with some unpublished “policy” inconsistent with the official and published policy. And there are many more: in their own way, the details of official incompetence in the reports of the courts on public law matters can be as depressing as the details in the reports of the divorce courts.

Most cases do not get to the high court. If there has been a possibly unlawful decision, it can often be dealt with swiftly and properly when a judicial review is threatened. So most threats of judicial review do not end up in the courts. But the existence and availability of judicial review means that public officials are deterred or discouraged from acting unlawfully. As such, judicial review is a public good. Public administration is all the better for it being around.

A question of standing, and why this matters for citizens and for businesses

It is against this background that the latest reforms to judicial review proposed by the ministry of justice are worrying. The express intention is to make it more difficult for anyone – citizens, businesses and representative bodies – to go to the high court to challenge unlawful action by public officials.

And with this inappropriate motive it is also plain that those promoting this reform have not thought-through the consequences that these reforms will have on the rule of law and the business of government. The proposals are illiberal and misconceived.

To take just one of the proposals: the government desires to restrict who can bring applications for judicial review.

The high court has a flexible approach to what is called “standing”. This means that not only individuals and companies directly affected can bring an application for judicial review but so can, in certain circumstances, representative bodies and pressure groups.

The test that applies here is set out in statute: the applicant must have “a sufficient interest in the matter to which the application relates”. If the decision or rule will affect a number of people then, when applicable, a representative body or pressure group will be given standing to challenge.

Mr Grayling is spinning this proposal as a counter to judicial review being used as “a promotional tool for countless left-wing campaigners”. This is superficial and ill-informed, for the entities that benefit most from a wide and flexible approach to standing are not tiresome radical politicians but small and mediums sized enterprises (SMEs).

Only a moment of serious thought is required for it to be clear that it is beyond the means of a small business to afford the time and money to bring a challenge by judicial review, and so it is often trade associations which bring challenges on their behalf.

The case reports are packed with examples of trade associations bringing judicial reviews of muddled but commercially sensitive decision and rule making. A brief database search reveals such claimants to include such unlikely “left-wing campaigners” as the United Kingdom Association of Fish Producer Organisations, the Scotch Whisky Association, the Hackney Drivers Association, the Infant and Dietetic Foods Association, the Federation of Tour Operators, the British Beer & Pub Association, the National Federation of Fishermen’s Organisations, the Association of Plumbing and Heating Contractors, and even the National Association of Memorial Masons.

But Mr Grayling, a supposedly pro-business justice secretary and lord chancellor, cannot see past the easy crowd-pleasing quips about left-wing campaigners. He does not realise (or does not care) that narrowing the rules on standing will mean that thousands of British businesses will be prevented from any practical means of challenging potentially unlawful decisions and rules which affect their bottom-line. It is, to say the least, a curious position for a “pro-business” politician, and it shows how little real thought has gone into these proposals.

But the problems are wider than this.

A failure of policy-making

Ultimately, this is not about the ineptness of Mr Grayling. And nor is it a problem unique to the ministry of justice. It is the failure to realise that policy-making and law-making are difficult to get right. Currently, department after department is being shown-up as implementing poor policies. The most spectacular recent example, from the department of work and pensions, is the “universal credit” programme; but it is not the only one.

Faced with the problems of policy formulation and implementation, the political system offers few effective checks and balances. Public law thus provides the means by which the worst excesses of public officials can face a solid block, that of a potential court order. But public law only has any purchase when judicial review is available.

The shoddy policy-making that currently affects the public sector will not be addressed by narrowing access to the high court. Indeed, given the general shambles of current policy-making, it is not that there are too many judicial reviews, but that there are too few.

 

Many thanks to Dr Mark Elliott and Greg Callus for information used in this post.