Posted on 04 Aug 2020

Liberty concerned about Government plans to limit judicial review

Fresh details into the scope of the review the Government has created to look at how judicial review is working have not provided any assurances that this crucial avenue to justice will be protected.

In fact, the scope is far broader than originally imagined and could lead to far greater limitations on our access to justice and ability to hold the powerful to account.

Judicial review is a type of legal action which every one of us, as well as organisations, can use to challenge decisions made by public bodies – including the Government – which they believe may be unlawful or breach our rights.

The courts can demand that public bodies and the Government take action to remedy bad decision-making. But they don’t suggest alternative policy positions – only the Government can do that.

This is because in the UK the balance of power between the Government, Parliament and the courts is central to maintaining a healthy democracy.

The Government is responsible for making policy, Parliament is responsible for making law, and the courts are responsible for upholding the rule of law.

This means that the courts keep the way the Government makes decisions in check. If the courts stepped into politics by engaging in the substance of policy decisions it would throw this balance of power off – which is why they don’t do it.

Similarly, if the Government can undermine Parliament or the courts then it disrupts the balance of power and puts our democracy in jeopardy.

The terms of reference infer that judicial review is an oppositional force to Government, rather than a mechanism for checking effective and lawful governance.

However, details of the scope of the planned review announced on Friday 31 July suggest this crucial balance could be about to be disrupted. The terms of reference infer that judicial review is an oppositional force to Government, rather than a mechanism for checking effective and lawful governance.

Responding to the Government’s announcement, Martha Spurrier, Liberty’s Director, said:

“Along with many others, Liberty is concerned about the Government’s planned reform of judicial review. This mechanism is essential to ensuring power is kept in check and therefore any review should be viewed with great caution.

“However, the terms of this process are particularly alarming. Justice would become a hollow concept if the Government of the day can choose which cases the courts hear – and the broad terms laid out suggest that this proposal is within the scope of this review.

“It would be entirely hypocritical to say the courts are too political while threatening to take away access to justice the minute a court makes a politically unpopular decision.

“Access to justice and the rule of law are fundamental British values which should be safeguarded – not limited based on political whim.”

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