Opponents of plans to restrict judicial review say the government has misinterpreted their independent consultation, which used faulty statistics.
Within law and politics, opposition appears to be considerable, with a cross-party letter sent to Justice Secretary Robert Buckland this week expressing so, despite a relative lack of awareness among the public.
James Packer, public law director at law firm Duncan Lewis said: “It’s a remedy in search of a problem that does not exist, with dangerous consequences if it’s brought in.”
Sara Birch, public law lecturer at the University of Brighton went further. She said: “To make it even more difficult means the government have more power to do things we’ve not democratically voted for.
“It would undermine the rule of law, and crucial principles of fairness and accountability.”
Mr Buckland had interpreted the independent review report (IRAL) chaired by Lord Faulks QC as having “identified a growing trend for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction”, but Lord Faulks himself disagreed in an interview on BBC Radio 4.Embed from Getty Images
Policy director at The Bar Council, Phil Robertson said: “Some of the wording in the report seems to have been taken out of context and used by the government as the basis for further consultation.
“The data tells a different story. In broad terms the number of judicial reviews has fallen, and the successful ones are less than half. We are not convinced that there’s a real need for overwhelming change.”
A spokesperson for the human rights charity Justice said: “There is a disjunct between Lord Faulks’ report, which concludes only two substantive recommendations, and the government’s response which is much more far-reaching.”
James Packer said: “Vastly contrary to the impression that is given, the courts really do bend over backwards, to try to avoid interfering in matters of Parliament’s right, to a point that you could almost say, they go too far.”
One of those recommendations involved overturning the Supreme Court Cart judgment, which allowed judicial reviews to be brought in immigration and asylum cases if the Upper Tribunal has refused permission to appeal a First-Tier Tribunal decision.Embed from Getty Images
The Justice spokesperson said: “We have considerable concerns about the statistical basis which IRAL concluded that Cart judicial review should be removed.”
They explained that IRAL compared the number of successful Cart judicial reviews from reported judgments against the number of applications but said: “A lot of these cases don’t have reported judgments, so that statistical basis is very flawed.”
Besides Cart, James Packer said: “The rest of it was a reasonably fair and balanced report. It has obviously been misrepresented by the government.”
Beyond IRAL’s recommendations, Mr Buckland has expressed interest in exploring ouster clauses, which can exclude legislation from the courts’ jurisdiction. Justice’s spokesperson said: “We oppose those proposals entirely. Independent court review of administrative decision making is very important to the rule of law, to addressing abuses of power, and for access to justice.”Embed from Getty Images
James Packer said: “I think the issue there is that all governments end up being anti-judicial review and end up portraying it as the courts vs the people. The government is only ever a defendant, and it constantly feels that it’s being thwarted.”
But to restrict judicial review at all throws up various risks.
Sara Birch said: “It is very basic that we should keep our separation of powers. Judicial review is a very important check on the power of the executive, and it’s very dangerous if the executive gets too powerful. Any attack on judicial review is extremely serious.”
James Packer said: “It’s hard now, to say why (checking executive power) is so important, because we live in a world in which that does happen. But when it doesn’t happen, we will notice all right, that’s for sure.”
He cited the result of entry clearance appeals being abolished for people entering the UK as a portent.Embed from Getty Images
He said: “Once they knew that their decision making was not going to be subject to judicial scrutiny, the standards of decision making took a nose-dive. That’s the view of the independent inspector of immigration. We don’t have to guess what happens to the quality of government decision making when it no longer becomes subject to scrutiny by the courts.”
Mr Packer fears public apathy and misunderstanding of judicial review will be contributing factors to restrictions being pushed through. He said: “The narrative is ‘Activist lawyers stop the politicians you elected doing their job’. That’s the public perception. But not of anyone who’s actually been involved in the process.
“People view it as: ‘It’ll never impact on me so what does it matter?’ I suspect it will matter but it will be too late by then.”
Approached for comment, the Ministry of Justice were “unable to provide statements to student journalists”.