Why the government’s proposals to restrict judicial review are misconceived

There is nothing novel about tension between the government and the courts: former Home Secretaries, most notably Michael Howard and David Blunkett, picked almighty rows with the judges. But the present confrontation between the coalition and the judiciary is particularly striking, not least because it is now opening up on so many fronts. It includes the long-running saga on voting by prisoners, the furore over the deportation of Abu Qatada, the “secret courts bill”, and the constant background noise concerning the perceived deficiencies of the Human Rights Act and the courts’ judgments given under it.

Today, however, David Cameron has opened up this “war” (his metaphor, not mine) on a new front, by raising the prospect of limiting the courts’ powers to subject government action to legal scrutiny. The proposal, it appears, is to make judicial review more expensive and to reduce the time-limit for bringing claims (which, at three months, is already very short). “Normal rules” were cast aside during the second world war, says Cameron, and the “economic war” in which the country is presently engaged justifies preventing the courts from obstructing the growth agenda.

To anyone who values the rule of law, this is a profoundly depressing and fundamentally misconceived argument. This is so for two reasons.

First, it casts judicial review—and, more generally, the law—as something that gets in the way of efficiently making decisions that promote the public interest. But such thinking is simplistic (at best), plain wrong (at worst). It rests upon a false dichotomy between adherence to law, on the one hand, and effective governance, on the other. Judicial review is in fact a valuable means of shining a light on the dark recesses of the governmental machine, in which inefficiency and incompetence lurk. Indeed, as the Prime Minister himself acknowledged, the prospect of judicial review in relation to the West Coast rail franchise revealed serious deficiencies in the decision-making process that seem likely to have far-reaching implications. Nor does judicial review impose especially onerous standards on decision-makers. Rather, it requires them to do such things as: give those likely to be affected by their decisions a fair opportunity of being heard; take into account all relevant (and no irrelevant) considerations; respect limitations contained in the legislation granting power to the government; and avoid manifestly unreasonable (or, in certain circumstances, disproportionate) decisions.

In fact, judicial review is particularly important in the UK’s constitutional system, given the paucity of other means by which to hold government to account effectively. The electoral system normally (but not invariably, as recent experience shows) delivers a substantial majority for one party; the governing party is generally able to impose its will on the House of Commons; and the House of Lords, while a valuable counterweight, is ultimately the Commons’ legal inferior. External scrutiny of government by independent courts is therefore imperative.

The second problem with Cameron’s analysis is, if anything, more fundamental. It presupposes that the courts’ powers of judicial review are vulnerable to political interference: that the judges’ wings can be clipped provided that the coalition can muster enough support to get the legislation through Parliament. This assumption may turn out to be dangerously misplaced. Indeed, it is no exaggeration to suggest that if the government and Parliament choose to push this point, they may unleash one of the most significant constitutional crises in recent history.

Under the theory of “parliamentary sovereignty”, Parliament is supposedly free to make any law that it wishes. Yet the underlying assumption is that other, political factors will make sure that Parliament does not abuse its authority—and that the legally unlimited nature of Parliament’s law-making power is therefore not something we need lose any sleep over. If, however, Parliament were to attempt to remove (or seriously reduce) the courts’ constitutional powers legally to hold the government to account, then it would at least be arguable that Parliament had failed to keep its side of the bargain—and that courts could retaliate in kind.

This may seem far-fetched. But in fact precisely such a possibility has been canvassed by senior judges. In the Jackson case, decided in the aftermath of an earlier attempt to interfere with judicial review, Lord Steyn said that judicial review may be a “constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. This comment was made against the backdrop of proposals to prevent judicial review of certain decisions, rather than (as under the proposals) to make judicial review harder. But the government should not draw undue comfort from that distinction: a point must come when seeking judicial review is so practically difficult (e.g. because of an unreasonably short time limit or unmanageable costs) that its theoretical possibility fails to meet the underlying constitutional concern. In 1997, Laws J, in the case of Witham, held that there is a constitutional right of access to justice, and that high court fees may breach that right. Against this background, the prospect of deliberately raising court fees in order to reduce access to justice is a highly suspect step that is likely to attract critical scrutiny by the courts.

The UK’s unwritten constitution relies upon a delicate—if unarticulated—balance of power between Parliament and the courts. That balance can be retained only if each side is appropriately respectful of the other. And that, in turn, requires that Parliament resists the temptation to undermine the courts’ constitutional role by significantly restricting their powers of judicial review. The Prime Minister should not blithely assume that any attempt to do so would succeed. And if he chooses to pursue the matter, he may find that waging “war” on judicial review triggers a bloody battle with the judiciary—from which neither side may emerge unscathed.