Mishcon Academy: Digital Sessions - Judicial Review

Posted on 07 December 2020

Emily Nicholson

In this episode, what role does the law play in politics?  Why is the Government so keen to assess judicial review? And does the government’s current consultation on the use of judicial review pose a threat to its legitimate use?

Hello and welcome to the Mishcon Academy Digital Sessions podcast.  I’m Emily Nicholson, a Legal Director at Mishcon de Reya and I’m joined virtually by my colleague Katy Colton, Head of the Politics and Law Group at Mishcon. 

Hi Katy.  Tell us a bit about the law and politics group.  How does the law relate to politics?

Katy Colton

Well, I think there’s a fundamental relationship between the worlds of politics and law.  At its most basic level, the role of lawyers is to interpret primary legislation made by Parliament.  And legislation by its very nature can be highly political.  But I think there’s also a vital and more broader role that lawyers play in upholding the central constitutional principal of the rule of law.  Essentially, that the Government must act within the law.  And to uphold the rule of law there must be a clear separation of powers.  Meaning the judiciary can hold the executive to account.  And I think it’s really interesting to consider separation of powers in current times and the political context because there have been attacks on the judiciary and the way that it’s carried out the supervisory function and we’re increasingly seeing clashes between different branches of Government.  I think the most notable example of that are Boris Johnson and Priti Patel talking about activist lawyers or left-leaning lawyers and that’s led to a lot of uproar in the legal community and indeed worryingly attacks on an immigration firm by I think, far-right people who really felt emboldened by the Government criticising lawyers in that way.  But I think we can also see clashes on the other side.  So, the judiciary attaching parliamentarians for interference in legal matters.  I think there was an interesting example this week in relation to the case of the disgraced MP Charlie Elphick and in his Court case there were six MPs who gave character references and he was then found guilty and I think he has a prison sentence.  But since then, journalists have made an application to Court for disclosure of those character references and MPs wrote to senior Judges copying in the Judges overseeing the hearing saying that this should be a matter of principal for Parliament to decide and not for the Court.  And then this week in response a Lord Chief Justice wrote a strongly-worded letter back to the MPs saying it was improper for them to seek to influence the decision of the Judge.  And so we see it on both sides.  We see criticism of lawyers who the Government or people against the lawyers are saying are trying to interfere in politics and we also see it on the other hand with judges saying that politicians should stop interfering in the judiciary.  So, I think it’s a really interesting time for us to consider the interplay between the legal world and the political world and I think it’s exciting for us to, to look at that from a law-firm perspective and say, “How can we advise our clients in this realm?”

Emily Nicholson

That’s really interesting, Katy and I think that plays really well into my next question because I wanted to talk to you about the review that the Government has proposed in relation to judicial review.  In its 2019 manifesto for the election last Christmas, the Conservative Party said, “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or create endless delays.”  The Government has now set up a panel to consider the remit of judicial review.  Can you just tell me a bit about the history of this and the current status of this review?

Katy Colton

Well, I think if we look at the history of why this panel was set up I think some of the blame can be actually levelled at your door, Emily as you acted on the two Gina Miller cases!  And the first Gina Miller case was in 2016 and it argued that the Government couldn’t trigger Article 50 to formally start the withdrawal process from the EU without an act of Parliament.  And then the second Miller case was in relation to Boris Johnson’s decision to prorogue Parliament.  And in both those cases, the Supreme Court ruled against the Government and actually upheld parliamentary sovereignty.  And since those cases there’s been increased interest in the role of judicial review.  And judicial review, let’s remember, is a fundamental aspect of the judiciary ensuring that the executive act within the law.  So, that’s a fundamental aspect of our constitution and the rule of law.  But if we look at the commentary and the media coverage following those cases and particularly following the first Gina Miller case, we see headlines such as the infamous, ‘Enemies of The People’ headline and lots of articles sought to depict Judges as overturning the will of the people and indeed interfering in political matters.  And I think that translated through to the 2019 Conservative manifesto which you look at talks about Judges conducting politics by another means.  And from that manifesto commitment the Government set up on the 31st of July 2020, the Independent Review of Administrative Law Panel to look into questions relating to judicial review.  And the panel put out a call of evidence on the 7th of September and that ran for six weeks and it closed at the end of October.  And it’s been really interesting to see the response to that consultation.  The Government hasn’t published the responses and indeed its the panel has said that it won’t publish the responses in full.  But a lot of the parties who have responded to the call for evidence have published them online so we’ve reviewed quite a few of them.  And concerns have been raised across the majority of those responses that actually the panel is looking for a solution to issues relating to judicial review that simply do not exist namely that there hasn’t been judicial over-reach on political matters.  And I think it’s important to remember that the two Gina Miller cases were incredibly unique and they’re not representative of the day-to-day judicial review caseload and I think it’s important that we make that clear because judicial review serves a really integral function of making sure that citizens can ensure that public bodies act lawfully and they follow the correct procedures.  And I think what is lost a lot of the time in the narrative on judicial review is the fact that judicial review can actually lead to positive change and it protects citizens’ fundamental rights.  I think one example relates to a case in 2013 when the High Court found that an NHS committee’s decision to authorise a closure of several children’s heart surgery centres was fundamentally flawed and should be set aside.  And I think without citizens having the right to review the decision of public authorities and indeed without the procedure which allows for proper oversight of what public bodies are doing, I think we could really undermine the core focus of rule of law within our constitution and so it’s incredibly worrying. 

Emily Nicholson

Katy, Mishcon submitted evidence to this panel.  What was this based on and what did it say?

Katy Colton

So, the response to the call for evidence on behalf of the firm was based on our experience in acting in a lot of judicial review cases.  But we also worked with our data science team to analyse data relating to 10,000 judicial review cases over the past ten years.  And the data analysis was really interesting because we found that some of the very premises of the panel’s questions were actually not based on data and were not factually correct.  I think a key example of that is that the first section, there are only three sections in the call for evidence and the first section was directed only to Government departments to answer.  And a lot of the focus of this was the question of whether judicial review and the threat of judicial review inhibits effective decision making by Government departments.  And actually what the data showed is the majority of judicial review cases are brought not against central Government departments.  It’s brought against other public bodies.  And so in our view it’s entirely inappropriate to dedicate a whole section of the call for evidence just to central Government departments and indeed to make any decisions on updating the process for judicial review based on the responses of Government departments because they are not the majority of the defendants in any claim.  I think that’s just one example of how the premise of a lot of the questions is not matched with the reality of judicial review on the ground and in the Courts.  Other key, really interesting facts that we found is that there’s actually been a steady decline in judicial review cases reaching a hearing since 2013.  So, there were 1,388 cases heard at hearing in 2013 compared with 528 in 2019.  And so this, this theory that there’s been a huge increase in the number of judicial review cases being brought and that there’s lots of emeritus claims and it’s leading to a waste of public funding and public resources is just not correct when you look at the data.  And what a lot of the other responses have said is that if there are any changes going to be made to the judicial review process, it needs to be based on actual data and there needs to be much more research and analysis done.  And I think this also accords with the time for the – for the call for evidence and the time for the consultation because if we look at previous reviews into judicial review they’ve taken a lot longer to make any decisions.  So, we were given a six week timeframe for giving a response to the call for evidence but if we look back there was a law commission review of remedies in administrative law and that took five years to complete between 1971 and 1976.  More recently, in 1993, the law commission again looked at judicial review and in that case there was a period of eighteen months between publication of its consultation paper and its final report.  And then again in 2008, the law commission spent two years assessing remedies available against public bodies.  And I think what these three examples highlight is that this is a really fundamental area to our constitution and that any changes really need to be thought through and really need to be based on evidence because this can affect the fundamental rights of individuals to ensure that the Government acts within the law.  And it’s such a balanced issue that I think we can’t take these things lightly and that the government really needs to consider the responses that it’s received, which on the whole have said that there really isn’t an issue with judicial review. 

Emily Nicholson

Yeah.  And I mean, judicial review’s actually quite difficult to bring anyway because there’s an additional stage to a normal claim where you have to obtain the permission of the Court to proceed.  The deadline for bringing the claims are incredibly short so you’ve, you’ve got to get your claim together very, very quickly.  So actually and I assume this was in your response as well, it’s actually quite difficult to bring a judicial review claim particularly if you are not privately funded.  Is that right?

Katy Colton

That’s completely right and I think that the question you’ve raised in relation to the permission stage is really interesting because there are already huge restrictions on how people can bring judicial review claims because we need to protect against the waste of public funding and public resources because if you bring a claim against a Government department obviously that’s going to engage public funds.  However, I looked at the response from the public law project to the Government consultation and it found figures that sad that in 2019 only around 20% of applications before the administrative Court were granted permission to proceed.  So, 20% of people who tried to bring judicial review cases led to then that slant of hearing.  And I think that shows that the fact that there is a permission stage is a really good gatekeeper to stop emeritus claims.  And also, you raise the issue of cost and I think that’s really interesting because one of the questions raised was whether the current cost regime is appropriate for judicial review.  But I think when you look back at the history of administrative law and the question of cost, this is a question that has been previously raised.  So, there was a consultation on the issue of cost in judicial review proceedings run in 2019 by this Government and that sought responses on the introduction of cost budgeting for judicial review.  But the Government’s not yet published a response following that consultation so it seems quite odd that it would then include further questions on cost in this consultation when it’s not even looked at the responses to the past consultation.  And that’s also reflected on other issues relating to procedure.  So, one of the other questions in the call for evidence looks at the question of standing i.e. who has the legitimacy to bring a claim in judicial review?   But that issue also was previously considered and dismissed by the 2013 consultation and judicial review which was run by Chris Grayling under the David Cameron Government.  So, again that asked for evidence, that asked for responses on whether we should restrict the people who are allowed to bring claims.  They considered those responses and the Government decided no, we shouldn’t change the question of standing.  And so again we’re at an odd phase where the Government is again asking the same question and I think some of the history  about what has happened with judicial review and how its evolved has kind of been lost when you look at what this panel is asking. 

Emily Nicholson

Yeah.  And I think that touches on a point I’d like to come to a little bit later which is the sort of differing approaches to judicial review, the two sides of the argument on it.  But just while we’re talking about the response that Mishcon gave, I just wanted to briefly cover the codification question because the panel asked whether the grounds on which a judicial review claim could be brought should be codified which would mean it’s written down and put into law and whether that would increase the clarity on the basis on which people can bring judicial reviews.  Now, thinking about it, it seems obvious that having something written down on a piece of paper that everyone can look at and understand would probably bring clarity but I’m not sure that in this case that that’s totally right and Australia and the United States have codified their processes.  So, can you just tell us a bit about what have been the results there and what was Mishcon’s response on this point?

Katy Colton

You’re totally right so in Australia, laws were introduced in 1977 and that set out a non-exhaustive list of grounds and conduct which are reviewable by the judiciary.  And this was intended to simplify the remedies available to the Court and the procedure for judicial review.  But what our research found was that actually the codification of the judicial review process has actually raised issues with clarity, ambiguity and the potential for executive overreach that we wouldn’t want to be repeated here.  I think a key example is that the codification has led to lots of satellite litigation which looks at cases turning on what particular words in the legislation mean and in order to decide those pieces of litigation they have to look at the case law that existed beforehand.  And so you have the common law still influencing decisions but then increased litigation looking at what the words in the legislation actually mean.  And I think a more worrying aspect of codification is that actually what happened was it meant for some acts, for instance there was an example of the migration acts, it meant that the minister was himself setting the grounds upon which his own decisions could be reviewed and I think that really fundamentally undermines the separation of powers and it reminds me of a recent news story relating to Priti Patel and the decision that she was found to have breached the ministerial code and Boris Johnson then chose not to sack her, which in previous cases has been, has been the course of conduct.  And the chair of the committee on standards in public life has said this could look like Boris Johnson is marking his own homework.  And I think the same could be said by the Government drafting the legislation which says that the Government’s own decisions could be reviewed.  I think that’s incredibly worrying and it could lead to restrictions on what cases can be brought and what can be subject to judicial review.  Which again undermines the rule of law.  And if we look at the United States, our research also suggested that much like Australia, the codification of judicial review has been described as ambiguous and has also led to satellite litigation.  So, our response suggested that we shouldn’t codify and there was no need to codify the law. 

Emily Nicholson

So, Katy let’s go back to this point that I think goes to the heart of the issues around this review of judicial review.  So, essentially there are two different approaches to judicial review.  One is the one that the Government often takes which has tellingly been expressed by the current Lord Chancellor, Robert Buckland QC which is that we need to ensure that the process of judicial review is not abused or used to conduct politics by another means.  Which I think we can agree is the Government’s concern in this case.  But the other view on it was expressed by Lord Pannick QC during a debate in 2015 which related to the updating the judicial review based on recommendations by Chris Grayling MP.  This was the previous review under Cameron that you discussed earlier Katy.  Pannick said, “However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our Courts; however much he may resent the delays and costs of Government illegality being exposed in Court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold ministers and civil servants to account in public.  Not for the merits of their decisions but for their compliance with the law of the land.”  So, these are two different approaches.  Previously, Paninck’s approach has, has won out.  So, what is your view on where this panel review will take us and do you think it’s right that judicial review is being abused or politicised?

Katy Colton

I think it’s a really interesting and important question but I think the quote from Lord Pannick and the other argument by Robert Buckland QC, I think it raises two distinct issues.  The first being whether judicial review is being abused or politicised and the second being whether judicial review inhibits effective decision making.  And I think we need to look at the two issues separately.  In relation to the question of whether it’s being abused or whether judicial review is being used to conduct politics by another means, our response was certainly that this isn’t the case.  Judges have always had a role on matters which touch on politics.  That’s an essential part of the rule of law.  But that’s different to saying that Judges are increasingly encroaching on political matters or indeed are making political decisions.  As I mentioned previously, Miller One and Miller Two were very rare.  In Miller One, the Supreme Court described the case as unique and Miller Two as a one-off.  And in fact there have only been ten cases across the past ten years which have looked at the extent of the executive’s prerogative powers which Miller One and Miller Two did.  And these are powers that can be enacted without parliamentary involvement.  So, these cases cannot be taken as the norm and cannot be taken as the basis to change the whole judicial review process.  I think it’s also essential to remember that judicial review is not an appeal against a Government decision on their merits and I think that was brought out in the Lord Pannick quote.  But instead, it focuses slowly on whether the decision is lawful and was made following correct processes.  And I think a quote that you’ve said many times Emily and which I think is totally right is that judicial review is about process not politics.  It’s not about the judiciary putting their own political stance in the cases, it’s about them looking at how a decision has been made and whether it was made within the law.  And that’s of fundamental importance.  And actually, it’s really interesting if you look at the cases that have been decided since the Covid pandemic started in March because already the Courts give the Government wide discretion on decisions of political matters but that’s only increased during Covid when the Courts have recognised that there has been a need for the Government to act quickly and that sometimes a Government can’t follow the normal decision-making processes because we’re dealing with a pandemic.  And so there’s been a lot of cases that have been brought or been tried to be brought in relation to the Covid regulations that have all found in the Government’s favour because the Government has a large margin of appreciation generally on political decisions and that’s only increased during Covid.  So, I think it’s totally not right to say that the judiciary is encroaching on political matters or indeed that judicial review is being abused to conduct politics. 

Emily Nicholson

Yeah.  Just on that, I agree and I think obviously much was made of the judicial decision in Miller Two but actually if you read the judgement it was a) very short and very clear and b) it went out of its way to ensure that it was not commenting on any political matters.  It didn’t comment on Brexit.  It did not make any recommendations for how Parliament should deal with the issue going forward.  All it said was that prorogation could not be used in this way.  It was an unlawful exercise of power.  And I think that, that really illustrates how a decision can be made on a matter that is highly political and highly fraught but the decision itself was purely legal.  It was about the lawful exercise of Government power. 

Katy Colton

I think that’s entirely right and I think it also raises a point that’s lost in the narrative in that both the Miller cases, the Judges were saying power should be given back to Parliament.  It wasn’t saying that power should be given to the judiciary.  In Miller One the Court said, “Parliament needs to make the decision on whether to trigger Article 50.  It’s not a decision solely for the executive.”  The case did not say, “The Judges say that Article 50 shouldn’t be triggered.”  It was within the rights of Parliament to vote to trigger Article 50 or to not trigger Article 50.  They weren’t making a decision on the merits of that but it was about the process.  I think you’re entirely right that the same can be said for Miller Two.  That this was putting power back in the hands of Parliament and upholding principles of the separation of powers. 

I think just turning back to your original question, I think there’s a second point that has been brought out with the responses to the call to evidence that touches on the quote that you mentioned from Lord Pannick.  And I think the title for the call for evidence asks whether judicial review allows the executive and local authorities to carry on the business of Government effectively.  Essentially saying, “Does judicial review inhibit your ability to make decisions?” and interestingly a number of the responses that we’ve seen on behalf of local Government or lawyers acting for the Government suggest that the availability of judicial review actually leads to better decision making.  The response from the Lawyers in Local Government Association said that on balance, any perceived inconvenience or irritation some judicial reviews might be perceived to create is wholly outweighed by the rule of law, access to justice and accountability.  It remains at the very core of our democracy that decision makers can be held to account by the public which they serve.  And so that’s interesting because that’s a response from local Government.  And similarly the Barristers Chambers, 11 Kings Bench Walk, whose Barristers regularly act for the Government in judicial review proceedings report that they’re often told by their clients i.e. the Government, that judicial review principles ensure that the Government has thought broadly about the nature of the powers and the relevant and irrelevant considerations for their decision making.  So, essentially the fact that judicial review is there to check the decision making public bodies leads to better decision making and I think that’s also an aspect that’s lost in the narrative on whether we should or should not reform judicial review. 

Emily Nicholson

Yeah.  Katy, thank you that’s really interesting.  It’s interesting to hear about those other responses to the panel because as you say obviously people might expect that Mishcon would have one view having acted on the Miller cases but it seems that that view is shared across quite a wide spectrum of participants.  So, I thought we’d just end by, and I think we know the answer to this, by whether you think that the procedure for bringing judicial review should be amended in any way?

Katy Colton

So, I think as you raised before there are already a lot of safeguards in place to protect against the bringing of emeritus claims.  There are time limits.  It’s a very short time limit in which you can bring a judicial review claim.  There’s very limited disclosure which sets it apart from other civil litigation matters and there’s a permission stage.  And I think because there are these safeguards in place, that protect against the bringing of emeritus claims or because as we’ve seen from the data that the number of judicial review claims that are being brought is actually declining year on year, that from the firm’s perspective we do not think the procedure for bringing judicial review should be amended and that the premise of the question actually isn’t based on the evidence. 

Emily Nicholson

Thank you Katy.  Well, for now let’s wrap up there.  I’d like to say thank you so much to you, Katy Colton for joining me for this Mishcon Academy Digital Sessions podcast.  I’m Emily Nicholson and do look out for the next episode in this series. 

The Digital Sessions are a series of online events, videos and podcasts all available at mishcon.com and if you have any questions you’d like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.  Until next time, take care. 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit Mishcon.com. 

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

Join Legal Director Emily Nicholson and Head of the Politics and Law Group Katy Colton as they discuss what role does the law play in politics, why the Government is so keen to assess judicial review, and whether or not the Government's current consultation on the use of judicial review, pose a threat to its legitimate use.

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