Government proposals to streamline judicial review of decisions authorising major infrastructure projects have been branded ‘Trumpian’. As well as being misplaced, such criticisms risk inhibiting mature discussion and further polarising an already entrenched, culture-war style debate about the role of the courts in a liberal democracy.
Under successive Conservative governments during the last 15 or so years, judicial review-bashing was so commonplace as to be unremarkable. It perhaps reached its apotheosis, or nadir, in the politically charged context of Brexit, when the then Lord Chancellor and Justice Secretary — one Liz Truss MP — declined to defend judges who were branded ‘enemies of the people’ for ruling in the Miller I case that the withdrawal process under Article 50 of the Treaty on European Union could not be triggered without Parliament’s say-so. Truss’s stance was described by the then Lord Chief Justice, Lord Thomas, as ‘completely and absolutely wrong’ — which must surely rank among the most stinging rebukes ever issued by a senior judge to a Minister. Subsequently, when, in the Miller II case, the Supreme Court ruled unlawful a five-week prorogation of Parliament — an attempt to thwart backbench MPs’ determination to seize the initiative regarding the Brexit process — the Johnson Government’s irritation doubtless informed its decision to establish the Independent Review of Administrative Law (IRAL), the measured conclusions of which plainly disappointed the Government.
Throughout that period, discourse regarding the courts’ judicial review role was highly politicised verging on polemical. Of course, politicians criticising judges, including in relation to the discharge of their judicial-review function, is nothing new; nor is it the preserve of one government or one political party, as the All-Party Parliamentary Group on Democracy and the Constitution chronicled in a report published in 2022. Nevertheless, it is hard to deny that such criticism has been especially pronounced for much of the last decade or so. Indeed, successive Lord Chancellors, whose constitutional duty it is to uphold judicial independence, have been in the vanguard of criticising judicial review. In 2013, the then Lord Chancellor, Chris Grayling, described it as ‘a promotional tool for left-wing campaigners’; Robert Buckland, in 2021, made claims about the IRAL panel’s conclusions that led to a public rebuke by the panel’s chair; and in 2023, Dominic Raab floated the idea of creating a ‘mechanism’ that would enable ministers to overturn judicial-review decisions with which they disagreed.
Against that background, it would be difficult to think of a greater contrast than the speech made by the Attorney General, Lord Hermer, last year in which he argued that governmental acquiescence in the exercise of the courts’ judicial review jurisdiction is essential — not only to the maintenance of the rule of law but to ‘the mutual respect that historically has been one of the great strengths of our constitution’. He went on to caution against ‘pitting one institution against another in ways that damage our reputation both inside and outside our borders as a law-abiding nation’ — which, of course, is precisely what many members of previous governments did by treating the courts, and judicial review in particular, as a bogeyman.
Commenting on Hermer’s speech, I noted in an earlier blogpost that the Government (like most new governments) had declared a ‘war on regulation’ and that, in that context, the Prime Minister had specifically cited concerns about judicial review delaying the approval of major infrastructure projects. In response, I said:
Going back to the days of the coalition, previous governments’ irritation with judicial review resulted in a seemingly never-ending series of initiatives and consultations aimed at drawing the courts’ teeth. Yet, to use the Attorney General’s language, judicial review is essential to the rule-of-law requirement of ‘government under law’ … It is to be hoped, then, that the Labour Government’s war on red tape will not extend to a war on judicial review.
We now know more about the Government’s plans regarding judicial review, following a Downing Street announcement about the implementation of aspects of the Banner review. The key proposals, the background to which is very helpfully set out in a blogpost by Sam Guy, are about reducing what the Banner review called the ‘multiple bites of the cherry’ that are currently available to those wishing to obtain permission to seek judicial review of Nationally Significant Infrastructure Projects. At present, three bites of that cherry are available, as Guy explains:
first, claimants seek permission ‘on the papers’, where a judge in the High Court decides whether to grant permission based on the papers before them (i.e. without an oral hearing). If the judge grants permission on the papers, the case can proceed to a full hearing. If the judge refuses permission on the papers, the claimant can renew their claim and seek permission at an oral renewal hearing in the High Court. If permission is again refused at that stage, the claimant may seek permission again at the Court of Appeal.
It is now proposed that claimants will have at most two, and in some cases only one, bite of the cherry: the removal of the paper-based stage will take away one of the existing three opportunities, while the possibility of seeking permission at the Court of Appeal following a failure to obtain it in the High Court will fall away if the High Court determines that the case is ‘totally without merit’. Whether these measures will have the desired effect of contributing to economic growth by streamlining the process by which major infrastructure projects secure official approval remains to be seen. What is, however, very clear is that these proposals are targeted and measured. As Guy puts it, they are in a ‘minor key’; similarly, Angus Brown argues that the proposals are ‘a common-sense step in the right direction’ that do not amount to ‘a significant denial of equal access to justice in the courts for campaigners against significant infrastructure projects’.
In constitutional terms, it is difficult to contend that there is anything dubious about what is envisaged. The Banner Review was correct when it argued that there is ‘no established constitutional right to multiple bites of the cherry at the permission stage’ — a view that is consistent, for example, with the view taken by the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28. The restriction, or streamlining, of the judicial-review process that is proposed is thus very different, in both practical and constitutional terms, from much blunter instruments such as the use of ouster clauses, which seek to rule out judicial review rather than to regulate the process by which it can be accessed.
Recognising such distinctions — and, therefore, acknowledging that not all executive-initiated legislative regulation or limitation of judicial review is necessarily constitutionally improper — is important. That is so not least because it is imperative that a sense of proportion is maintained and that ‘wolf’ is not cried unthinkingly in response to every proposed statutory intervention. Predictably, however, that is exactly what some of those most directly interested in litigation of this nature have done. Friends of the Earth, for instance, have implied that the Government is attempting to place itself ‘above the law’, while a prominent campaigner at Wild Justice has said that: ‘It sounds like Starmer is auditioning for a role in Trump’s cabinet.’
There is, of course, scope for legitimate discussion and disagreement about how the balance should be struck between modifying the judicial review procedure and pursuing the competing policy goals that, at least in the Government’s view, such modifications may serve. But the criticisms outlined above are unhelpful. Indeed, charges such as Trumpianism imply the veneration of judicial review in the precise form in which it presently exists as a sacred object, such that any modification of it is necessarily constitutionally improper. Such a stance risks the polarisation of debate and the stoking of precisely the type of reactionary criticism of the courts’ judicial-review role that has been so prominent in recent years. Supporters of the Human Rights Act 1998 (of whom I am one) sometimes fall into the same trap by approaching any proposal for its replacement or reform as necessarily improper, thereby treating the existing legislation as sacrosanct (rather than as one of many possible ways in which human rights might be accorded appropriate legal protection) and stymying mature debate.
The reductio ad absurdum of criticism of judicial review can be found in a recent article in The Critic, in which the wholesale abolition of judicial review is called for. While it is difficult to take such arguments seriously, it is also worth noting that current experience in the United States — where the Vice-President has called into question the courts’ authority to exercise constitutional control over the executive branch — suggests that little can be taken for granted. Indeed, while not precisely on all fours with JD Vance’s apparent views, the suggestion, noted above, by a former Lord Chancellor that a mechanism should be created permitting the UK’s Government to overturn disagreeable judicial decisions is at least in the same ballpark, and serves as a reminder that the UK is not immune to the chill winds of authoritarianism that are increasingly afflicting liberal democracies.
Against that background, it behoves those who seek to defend liberal-democratic principle, and the judicial role that goes along with it, to exercise judgement in the service of measured debate, rather than mimicking, and thus stoking, the reactionary forces they aim to contain. Not all proposals to ‘reform’ judicial review are equal and not all criticism of it implies a lack of commitment to constitutional principle. The Government’s proposals to reform judicial review of Nationally Significant Infrastructure Projects are not Trumpian, they do not seek to place the Government above the law, and it is counterproductive to suggest otherwise.
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