Judicial Review is a vital mechanism to ensure the rule of law; but misapplied, it can defeat the rule of law.
Before going on to look at reforming the system, we need to know what it is, and the court statistics suggest that most people who go to law do not understand it. Occasionally it seems, neither do the judges.
An article was promised on reforming judicial review, in the light of the recent wayward judgment of the Supreme Court. Before that can be written though, what is judicial review, and what is wrong, if anything?
That is a giant question. This post will be turned into a standing article over the weekend, with far more detail and analysis, but even that will be only a surface skim.
Judicial review is a procedure by which a court can restrain an administrative body or official from exceeding their lawful jurisdiction. Without these remedies, public bodies would run riot. In the old days of the Court of King’s Bench, writs were directed at magistrates who had neglected to mend roads and bridges, or courts which heard cases outside their jurisdiction (or of which the King’s Bench were jealous; they practically destroyed cheap, local justice by using ‘creative’ interpretation of statutes to starve local courts).
Today the bureaucracy is bigger and the law governing it is full of tripwires, but the cases are still few, because authorities hire expensive lawyers to check the legality of everything they do. Nice work if you can get it.
The quarterly statistics published by the Ministry of Justice show that of all the of judicial reviews begun, only 1% result in a win. That is a little misleading, as some must be settled out of court, but it shows how applicants are too ready to jump to a lawyer.
The biggest proportion of cases (about a third of them) are immigration and nationality cases. These also take up a large proportion of all cases reaching as far as the Supreme Court. The success rate is still just 1% though.
That 1% figure should encourage bureaucrats that they are in little danger of challenge, but actually it may be worrying: it means they are not taking risks, are staying too safe. I have sat and watched decisions being made, and this rings painfully true.
None of this tells you what the rules are, which is to say on what basis a court may take it upon itself to overturn a decision made by someone with authority. If a council is instructed by law to put all its signs in English and Welsh, and it just uses one language, then a court may intervene to uphold the law, but that is not the problematic issue. The problem is when a court strikes down an action which on the face of it is within the council’s powers, but which breaks the implied “Wednesbury rules”: that must be the subject of the detailed article.
- The Rule of Law by Tom Bingham (former senior Lord of Appeal)
- Trials of the State: Law and the Decline of Politics by Jonathan Sumption (former Justice of the Supreme Court)
- The Secret Barrister: Stories of the Law and How It’s Broken
- Constitutional & Administrative Law by Neil Parpworth
- Scots Law for Journalists by Rosalind McInnes
- The Madness of Crowds: Gender, Race and Identity by Douglas Murray
Beyond Brexit: Towards a British Constitution by Vernon Bogdanor