Judicial review “necessary for effective and consistent decision-making”: Centre for Governance and Scrutiny

The overall objective of the Independent Review of Administrative Law (IRAL) is based on a misapprehension, the Centre for Governance and Scrutiny (CfGS) has claimed in its response to a call for evidence.

The IRAL was set up in July this year and is chaired by former government minister Lord Faulks QC.

The CfPS noted that the terms of reference for the Review state that it “should bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law”.

In its response, which can be viewed here, the Centre said: “Judicial review of executive action is an intrinsic part of the overall framework of governance in the UK at both national and local level. Describing the right of individuals or groups withstanding to bring action as ‘balanced’ with the business of effective government is a misapprehension, because judicial review is a mechanism to ensure government is effective, by striking down those decisions which are significantly flawed for reasons of process.”

The CfGS argued that, along with other areas of law and policy, judicial review had evolved in recent years to keep pace with the evolution and development of modern local and national Government.

“This is in line with the nature –and strength –of the UK constitution as a dynamic one. Seeking through legislative means to codify (and/or constrain) the power of the courts to further evolve and develop risks that judicial review will become ossified and unable to develop –resulting in perverse outcomes both for Government and for applicants, not to mention the negative impact on the rule of law more generally,” it said.

The CfGS highlighted how the rights and responsibilities of the courts to review executive action were not held and exercised in isolation.

“The role of the courts and the role of Parliament do not sit in tension. They are part of a wider framework to which public bodies generally are subject; a 'web' of accountability1in which a range of stakeholders are engaged in 'public reason', and the support and enforcement of basic principles of democracy and good governance,” it argued.

“This web has many nodes to it. The rule of law, in general, binds public bodies – insofar as they contract, or carry on acts which render them subject to the law of torts, for example. Public bodies are held to account by Ministers, by Parliament, and ultimately by voters. Public bodies may be held to account by inspectorates and regulators, who hold powers in statute. They may be held to account by non-executive activity –at national level, select committees; at local level, overview and scrutiny committees.”

The CfGS highlighted how law officers and those with similar positions in other public bodies (including monitoring officers in local authorities) themselves held decision-makers to account, “and in this context the prospect of judicial review sharpens and refines decision-making capabilities to ensure that decisions are defensible”.

The response maintained that judicial review was necessary for effective and consistent decision-making.

It added that attempts to constrain its application because its presence was administratively inconvenient to Government took no account of:

• The presence of the principles that underpin its operation in the common law, principles that would persist notwithstanding any attempts to restrict it;
• The existing constraints on judicial review, which ensure that it plays a restricted and proportionate role in our constitutional settlement;
• The growing tendency of Government to legislate in a way that minimises effective Parliamentary scrutiny, and therefore suggest a need for more “anxious scrutiny” by the courts on matters which affect individual rights;
• The extent to which it is open to Government to place certain issues beyond the remit of law by claiming that they are “non-justiciable”, even by purporting to pass legislation to this effect.

The deadline for responses to the IRAL call for evidence is 5 pm on 26 October.

Earlier this month the Law Society set out six fundamental principles of judicial review that it says the IRAL “must protect”, arguing that judicial review is “a pillar of democracy and a vital check on power”.