Sir David Davis writes on the government’s proposals to restrict judicial review


As published by The Guardian:

Be warned: this government is robbing you of your right to challenge the state.

Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.

But governments do not like judicial review for this exact reason.

Given the government’s recent high-profile defeats at the hands of judicial review, their plans to curb it should come as no surprise

First, Gina Miller challenged the government’s position that article 50 could be triggered without parliamentary authorisation. It was a challenge that I think she was right to bring, but it caused several headaches for the government. More recently, the 2019 supreme court case on the prorogation of parliament similarly resulted in political difficulties.

These are the big, spectacular defeats the government has recently faced. But on a daily basis, judicial reviews against various arms of the government are heard in courts up and down the UK. And often the state finds itself on the losing side of the argument.

The government plans to restrict the use of judicial review in an obvious attempt to avoid accountability. Such attempts to consolidate power are profoundly un-conservative and forget that, in a society governed by the rule of law, the government does not always get its way.

Plans to restrict judicial review are certainly not new. In 2012, we saw David Cameron try to restrict its use by raising fees and imposing tighter time limits on applications. And in 2000, Tony Blair’s government included in the law a clause to prevent the investigatory powers tribunal from being looked at by judges.

The 2019 Conservative manifesto promised “access to justice for ordinary people” and to “ensure that judicial review is available to protect the rights of the individuals against an overbearing state.” But proposals to restrict the use of judicial review do the exact opposite of that. They tip the scales of law in favour of the powerful.

The use of judicial reviews extends beyond campaign groups challenging the government on immigration or the tiny details of Brexit. It gives a voice to victims.

When it was announced that serial rapist John Worboys would be released from prison, his victims brought a judicial review to challenge the Parole Board’s decision. The high court ruled the Parole Board was wrong and Worboys should not be released. Today he remains behind bars.

Judicial review does more than give victims a voice, it can also give them justice. Susan Nicholson was tragically murdered by her partner, Robert Trigg, in 2011, though an inquest initially ruled the death accidental. When it was later revealed that Trigg had a previous partner who had died in similar circumstances and had a significant history of violence against women, Nicholson’s parents used judicial review to argue for an inquest into her death, which ultimately led to achieving justice.

But beyond crime and justice, judicial review also delivers for individuals on matters affecting everyday life.

For example, when a seven-year-old boy with special educational needs had his care plan severely and unnecessarily cut without warning by the local authority, his family were able to judicially review this decision. Through this, that boy was able to access the education he was rightfully entitled through by law.

The government is also looking to abolish what are known as Cart judicial reviews. These refer to when the high court can – in exceptional circumstances – review decisions where permission to appeal has been refused. In short, they are used to correct fundamental and dangerous errors of law.

Take, for instance, the case of a woman who had been trafficked to the UK to be a maid in a diplomatic household. She had her asylum claim dismissed and was denied the right to appeal that decision. She brought a Cart judicial review, which ultimately led to a U-turn and her appeal was allowed. After that, the Home Office conceded and the woman was granted refugee status.

If the government had their way and Cart judicial reviews were abolished, this woman would have been denied justice. She would have faced being returned to a country where there was a serious risk she would go on to be trafficked again.

The government is wanting to abolish Cart judicial reviews as they, in their view, are often expensive and unsuccessful. But their actual cost is between £300,000 and £400,000 a year. A tiny sum for the government. In fact, it is the same as what the government spent on adding to its private art collection in 2019-20.

Their success rate has also been disputed. The Independent Review of Administrative Law said the success rate of Cart judicial reviews was about 0.22%. However, further analysis shows this to be wildly incorrect. The success of Cart judicial reviews is more like 5.7%, much higher than the government’s earlier analysis.

While the attack on judicial review is a worrying assault on our legal system, it is only part of the picture. The government intends for this bill to serve as a template for further attempts to curtail the working of the courts in the UK.

It is attempting to abolish Cart judicial reviews through a mechanism known as an ouster clause. Essentially, this is the government legislating to deny a court jurisdiction in a certain matter. Left unchecked, the use of these ouster clauses could give the government free rein to designate certain decisions that it has made, or the use of certain powers it hands itself, to be unchallengeable in the courts.

And the government, through this bill, wants to establish a framework for how ouster clauses can be applied to other areas in future legislation. This all too clearly leaves the door open for further ouster clauses to be created that remove the courts from decisions in matters such as employment tribunals or social security. It does not take a wild imagination to picture a future government, racked by constant losses in the courts on welfare matters, to suddenly legislate to remove the court’s vital oversight functions in such decisions.

As a Conservative party, we are rightly proud of our heritage that champions individual liberty alongside a fair and balanced rule of law – judicial review is fundamental to these twin ideological pillars. It would be wrong for this government to sacrifice these virtues on the altar of power, and I will be at the forefront of any battle to protect this important legal tool.