It helped thousands of students across the country to have “discriminatory” computer-calculated exam grades scrapped this summer. It enabled health workers on the Covid frontlines to challenge the government over personal protective equipment shortages. It helped Gurkha veterans, who have been part of the British Army for centuries, challenge a policy which denied them settlement in the UK. And it kept a “dangerous” rapist behind bars.
What is the mysterious “it” we’re referring to?
Judicial review, of course!
It has helped with all these things, and plenty more.
In spite of its deceptively uninteresting name, judicial review – or JR as many call it – is anything but dull.
It’s basically a kind of court case where a person – known as the “claimant” in legal jargon – challenges the lawfulness of a decision, action or failure to act by a public authority.
That includes decisions made (and actions taken or not taken) by local councils, government departments, police forces and health authorities, among others.
How does judicial review work?
The first step is for the claimant to write a formal letter to the relevant public authority setting out the proposed claim.
If the authority doesn’t provide a satisfactory reply by a given deadline (normally within 14 days), the next step is for the claimant to file a claim form and apply for permission to take their case to court. At the permission stage, the courts weed out any unarguable cases.
Once granted permission, consideration of the claim can start in the High Court – where supporters of a particular legal challenge often gather en masse, sometimes with placards and loudspeakers, on the day the case is due to be heard.
Those involved in the dispute make their arguments in court and who wins is ultimately decided by the judge, or judges.
If the claimant wins, the relevant decision(s) of public authorities may be declared “unlawful” and “quashed”.
The court may also order the public body to do, or not do, something – or the public body may need to make its decision again.
In some cases, but not all, the court may order the public authority to pay ‘damages’ – or compensation – to a person who has suffered a loss as a result of the decision, action or inaction.
The case can eventually go all the way to the UK Supreme Court if the claimant(s) or the body(s) involved in the dispute decide to appeal lower courts’ decisions. Where JRs raise human rights issues, previous decisions of the European Court of Human Rights in Strasbourg can be relevant.
Judges CAN’T arbitrarily quash decisions just because they would have taken a different one, or because they feel it was the wrong decision.
But they CAN overturn decisions for any of the following main reasons:
- They might rule that the decision breaches one or more of a person’s rights which are protected under the Human Rights Act 1998.
- They might rule that the decision is unlawful because, for example, the person who took it didn’t have the legal authority to do so.
- They might rule that there was “procedural unfairness”, such as the decision-maker being biased when they were meant to be impartial.
- They might find that the decision was “irrational”, if they consider it to be so unreasonable that no person, acting reasonably, could have made it. This happens very rarely, according to the Institute for Government.
With some exceptions relating to EU law, judges can NOT, through judicial review, disapply or quash laws that have been passed by Parliament – because Parliament is sovereign in the UK, which means it has the last word.
But judges can rule on laws made by ministers, also known as secondary legislation, and they can issue a declaration when a law passed by Parliament is incompatible with our human rights – raising a red flag that politicians ought to do something about it.
Sounds good, right? To be able to go to court to hold government departments and other public bodies to account when you think your rights have been breached or you’ve been treated unfairly?
We think so too.
But, rather worryingly, what we’ve just told you could be about to change…
The future of judicial review
Boris Johnson and Lord chancellor Robert Buckland QC have set up a panel of experts tasked with examining the need “for potential reforms to judicial review”.
“This review will ensure this precious check on government power is maintained, while making sure the process is not abused or used to conduct politics by another means,” Buckland said.
The panel is led by Lord Edward Faulks QC, along with five other esteemed legal experts. There are concerns over Faulks’ impartiality on the subject, as he is a former Conservative justice minister who has written critically about JR.
Several law firms have voiced concern that the panel members “are not fully representative of those concerned about the future of judicial review”. In an open letter last month they called for the government to expand the panel to include practising lawyers with expertise in claimant law, public law litigation and legal aid funded judicial review work.
Among the areas the panel is meant to look at is whether judges should be able to rule on certain “executive decisions”. It will also look at the grounds on which people should be able to mount judicial review claims against the government, and what action the court can order the government to take if it is found to have acted unlawfully.
Later this year, the expert panel will make its recommendations to the government on what it should do next.
Should we be worried?
Some fear that the government wants to weaken, rather than strengthen, judicial review as a means through which citizens can hold it to account.
In an interview with the Times last month, Faulks said it is “quite impossible” his inquiry would recommend the JR process be abolished. But he reportedly said it was “reasonable to ask” if judges are venturing into policy areas that should be for parliament to decide.
It’s fair to say that Downing Street was not pleased after the Supreme Court ruled that the government had acted unlawfully last summer when it suspended Parliament weeks before the October 31 Brexit deadline.
But, contrary to the picture portrayed in many British tabloids newspapers, the Supreme Court was not taking sides in the fractious Brexit debate.
Rather, it was upholding the rule of law – the centuries old principle that no one, not even the government, is above the law.
And key to that principle is the idea that Parliament, with its democratically-elected House of Commons, is sovereign (or, in other words, the supreme law-making authority).
This idea has been championed as integral to Britain’s identity and democracy for centuries – long-before we joined the EU, let alone the 2016 referendum.
The senior judges basically said that Johnson had no “reasonable justification” for suspending Parliament several weeks earlier than normal, and so preventing MPs from debating and scrutinising his Brexit withdrawal agreement.
Successive governments have claimed that JRs have been used excessively, causing unnecessary delays in achieving its policy outcomes.
But the Bar Council points to the fact that applications for judicial review fell by 44% between 2015 and the end of September 2019.
And people’s ability to use JR to challenge government decisions has already been reduced as a result of cuts to legal aid.
At the end of the day, JR is an important check on decision-making by public authorities which helps to uphold the rule of law.
If it is curtailed or cut, we stand to lose an essential safeguard through which we can stand up for our rights when government departments and other public bodies get things wrong.
It means that we, the people, stand to lose some of our power.
Still not convinced of the importance of JR?
Well, here are a few examples of key judicial review cases in the past few decades which protected important interests and transformed our rights in Britain.
Exams algorithm U-turn
Hundreds of thousands of school pupils in England had their exam results downgraded this summer by an opaque algorithm – with pupils in the most disadvantaged areas worst affected.
In the days before the government scrapped these grades for those predicted by teachers, students supported by law firms threatened judicial review.
Curtis Parfitt-Ford, an A-level student at comprehensive school in Ealing, and Foxglove, a non-profit group that campaigns against the misuse of digital technology, wrote to the Department for Education and exams regulator Ofqual arguing that their algorithm rwas discriminatory.
While six other affected students, working with the Good Law Project, wrote a letter to Ofqual accusing it of having an inadequate system for students to appeal their results.
The government’s U-turn came before the cases reached the courts, but the potential for judicial review no doubt added to the weight of pressure on the government to reconsider use of the algorithm.
The coronavirus pandemic
Doctors, people with disabilities and nightclub owners are among a number of people to use judicial review to hold public authorities to account in the response to the pandemic.
In March 2020, National Institute for Health and Care Excellence (‘NICE’) amended its Covid-19 guidelines for clinical care following a a proposed judicial review.
It secured “important changes to protect the rights of autistic people, people with learning disabilities, and/or mental health issues from discrimination when accessing critical care,” according to the British Institute for Human Rights.
In April, Dr Nishant Joshi and Dr Meenal Viz launched a legal challenge against the government’s guidance on personal protective equipment (PPE), which they argued exposes them to greater risk of coronavirus infections.
In October, the owner of well-known nightclub G-A-Y launched a legal challenge against the government’s 10pm hospitality curfew.
Jeremy Joseph, the nightclub’s owner, told Sky News: “The government has failed to show why the 10pm curfew was put in place and has published no scientific evidence to substantiate its implementation.”
Employment tribunal fees ruled unlawful
In 2017, the Supreme Court ruled that an order permitting fees to be imposed for certain kinds of Employment Tribunal claims was unlawful.
Prior to the fees order, people could make a claim in an Employment Tribunal (and pursue an appeal) without having to pay a fee, which meant that workers could uphold their rights regardless of income or wealth.
Nevertheless, government data showed 79% fewer cases were brought over three years after the fees were introduced, the BBC reported at the time.
Trade union Unison said the fees prevented workers’ access to justice – a fundamental principle of the UK’s constitution.
“The Lord chancellor accepts that there is no basis for concluding that only stronger cases are being litigated,” senior justices said in a 53-page judgment.
They added that low or middle income households could not afford the fees “without sacrificing ordinary and reasonable expenditure for substantial periods of time”.
The Supreme Court also found the fees were indirectly discriminatory because a higher proportion of women would bring discrimination cases, which could cost more for claimants because of the complexity and time hearings took.
On the eve of the victory in the Supreme Court, Unison’s general secretary Dave Prentis said: “These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.
“We’ll never know how many people missed out because they couldn’t afford the expense of fees.”
The ‘Black Cab Rapist’ was kept behind bars
In 2009, John Worboys, the ‘black cab rapist’, was found guilty of sexually assaulting 12 women in his cab, although he was believed to have used ‘date-rape’ drugs to attack over 100 female passengers between 2002 and 2008.
He was imprisoned under an indeterminate sentence, with a requirement that he serve a minimum of eight years behind bars. Once those years had elapsed, he applied for parole and the Parole Board recommended that he be released.
Two women survivors of Worboys’ assaults, known as DSD and NBV, challenged the Parole Board’s decision to release Worboys by bringing a judicial review.
In March 2018, the High Court concluded that the Parole Board’s decision to release Worboys was irrational because it failed to consider in detail the full circumstances of his offending. The Court quashed the release decision and sent the case back to the Parole Board, to be reconsidered by a different panel.
Police ‘flawed’ use of facial recognition technology was unlawful
Father-of-two Ed Bridges, from Cardiff, was twice caught on camera by South Wales Police’ automatic facial recognition van – once while Christmas shopping and while also attending a peaceful protest against the arms trade.
The 37-year-old felt the cameras were being used to deter peaceful protesters and felt it was a gross invasion of his privacy.
After informing human rights organisation Liberty of his predicament, he took his case to the High Court and lost.
But he appealed, and in August this year, the Court of Appeal ruled that the interference with his privacy rights was not in accordance with the law. There were ‘fundamental deficiencies’ in the legal framework regulating where automatic facial recognition would be used and who could be placed on a watchlist. The Court ruled that, in respect of those questions, ‘too much discretion [was] left to individual police officers’.
The decision has spurred on campaigners, including human rights organisation Liberty, who are calling on police forces around the country to cease using automated facial recognition technology amid fears over breaches of privacy.
Councils and Tribunals Had To Ignore ‘Bedroom Tax’ Where It Was Discriminatory
At least 150 partners of people with severe disabilities across the UK were able to have their full housing benefit restored after the Supreme Court last year clarified the effect of a judicial review from 2016.
In November 2019, the Supreme Court unanimously ruled that a council had acted unlawfully when it reduced the housing benefit of a man, known only as RR, who is the main carer for his partner, who has severe disabilities.
RR and his partner live in a two bedroom flat for which he claims housing benefit.
In 2013, their local authority decided that their housing benefit should be reduced by 14 percent because they were deemed to have a “spare room,” even though the second room is required to accommodate medical equipment and supplies.
RR took his case to a tribunal, which ruled that that he and his partner had suffered unjustified discrimination.
Meanwhile, another case – a judicial review called ‘Carmichael‘ – was on its way to the Supreme Court. This, too, concerned bedroom tax deductions from housing benefit for people with disabilities or their carers. In the Carmichael case, the Supreme Court decided that, where there was a medical need for an additional bedroom which was not catered for in the legislation imposing the bedroom tax, there was unlawful disability discrimination.
The relevant rules were amended by Parliament following the Carmichael case, but the effect of the amendments was not retrospective. This raised the question of whether, in calculating how much housing benefit people like RR were entitled to, local councils (and tribunal decision-makers) should use the rules before or after they were amended by Parliament.
The practical difference was that, if the calculation was based on the system after it had been amended, people like RR would be entitled to housing benefit without the bedroom tax deduction (avoiding discrimination on the ground of disability).
The Supreme Court’s 2019 decision in RR’s case clarified that local authorities and tribunals had to find that a person who had been unjustifiably discriminated against was entitled to the housing benefit they would have received if the discrimination had not occurred.
In other words, local council and tribunal decision-makers had to use the rules as they were after Parliament had amended them, to calculate housing benefit entitlement in a way that avoided disability discrimination.
This clarification meant that full housing benefit would be restored to RR, as well as 155 other partners of people with severe disabilities across the UK who had taken similar cases to tribunal.
Lady Hale, the former president of the Supreme Court, referred to 130 “lookalike cases” in England and Wales and there are known to be 25 similar cases in Scotland, according to the Guardian.
EachOther thanks Natasha Holcroft-Emmess, a DPhil candidate at Oxford University’s Faculty of Law, for her help reviewing this article.