Questions raised over judicial review reform

Two former judges on the Supreme Court of the United Kingdom have told the Financial Times they are concerned about government ministers trying to limit the courts' powers of judicial review, scrutinizing and overturning government policy, ahead of the publication of a report on the topic.

John Dyson and Jonathan Sumption's comments querying the government's motives come in the wake of widely-criticized remarks by Home Secretary Priti Patel and Prime Minister Boris Johnson at this year's virtual Conservative Party conference, where both spoke of "do-gooders" and "lefty lawyers "when discussing the asylum process and law and order.

Judicial review is the process in England and Wales whereby members of the public can challenge government decisions in the High Court, and in recent times the government has lost several cases.

Arguably the most high-profile and politically embarrassing was in September last year, a case brought by businesswoman Gina Miller, which ruled that Johnson had acted against the law by suspending Parliament in a bid to prevent a no-deal Brexit being blocked.

"What I've discovered is that (even if I am not a trained legal professional) the law can be used by me as a tool," said Miller afterwards. "As a litigant, in partnership if you like, with the legal profession, I can do an awful lot of good."

Since then, the Conservatives' election win last December has given them a substantial, Brexit-backing majority, and in July the government set up a panel to look at potential changes to the process of judicial review.

Dyson said in most instances, it "works very smoothly and there is not a problem". Despite professional opposition, he observed, previous governments had already reduced the number of judicial reviews brought before the court. "So, I do find myself asking the question 'Why is the government doing this?' and the only answer I can come up with is that they are looking to rein in and weaken judicial review."

Sumption admitted there was potential for reform, but said he was not sure the government understood the problem.

Maurice Sunkin, a law professor at Essex University, said the Miller ruling may have been the tipping point. "Miller was the big case but there have been a series of other cases which have upset the government," he said.

The government could make small alterations, such as changing the cost of launching a case, or rewrite the rules about how a legal challenge can be brought about.

As it is, the number of judicial reviews lodged with the courts has fallen dramatically during the last seven years, from more than 15,000 in 2013 to just over 3,000 in 2019, although this may be related to a change in how immigration case reviews are heard.

The Law Gazette reported that the first public sector legal body to speak out about the issue was the Lawyers in Local Government, also known as LLG, which said the review was "fit for purpose".

"The system remains of profound importance in ensuring that the judiciary is separate from the executive within the constitution," the statement continued. "With that in mind, LLG would expect to see further consultation incorporating a high level of detail on any proposals for change before significant alterations are made to the process."