Christopher Stanley

Apparent judicial over-reach or the exercise of excessive judicial power is the present scourge of some in the current British government.

The British government was elected on a manifesto which included the following commitment:

On 18th July 2020, The Telegraph reported that “Judges could be barred from making political rulings under a Government review, as the Court of Appeal was accused of ‘taking over’ after deciding that Islamic State bridge Shamina Begum could return to the UK”. A commission of five ‘independent’ legal experts “could put in place new rules to prevent judicial reviews being used to make political decisions”.

I ask two questions about this ‘initiative’. First, what is motivating this reaction within the British government? Second, what are the dangers to the constitutional settlement with this ‘initiative’ by a dominant executive unfettered by parliamentary scrutiny or accountability?

As to the first question. The motivation to rein in the apparent overreaching tendencies within the judiciary comes from the emerging view within elements of the current government that unelected judges are making political judgments which interfere with and undermine the right of the elected government to govern - they are indulging “political litigation”.

Whilst Britain remains a constitutional monarchy with a sovereign parliament, the present constitutional arrangements have, by the electoral system in place, delivered an elective dictatorship. This means there is an opportunity to tighten the grip of executive power and dominance at the expense of a neutered parliament.

One of the roles of the judiciary therefore becomes to assume the role of parliament in securing accountability and transparency by way of scrutiny of those in executive authority exercising discretionary power for both their law-making role and their decision-making role.

Law-making in Britain is by statute. However, the parliamentary process of introducing and scrutinising legislation as it proceeds relies upon both an agreed timescale, due process and balanced debate. In addition to Acts of Parliament there is a wide range of legislative instruments which are not always subject to the required level of necessary scrutiny. These maybe secondary legislation, statutory instruments, guidelines and guidance and so forth.

In an elective dictatorship with a powerful majority in parliament, the democratic mandate, the delivery of which is the project of the executive, can be secured without the sufficient rigours of parliamentary scrutiny.

Scrutiny is an ambiguous concept contingent upon a legislature’s constitutional and procedural rules but also contingent on the stances of particular actors – including government, opposition, parliamentary committees and outside observers. As the Institute for Government noted:

The executive in an elective dictatorship is motivated by the delivery of the democratic mandate. The democratic mandate – the will of the executive as expressed in the manifesto – can be delivered most effectively (in terms of the executive) where there is an absence of scrutiny and accountability and restricted access to lawful challenge before the judiciary.

The current political administration in Britain attacks both the civil service (the cull by ‘hard rain’) and the judiciary. It further tightens the grip on executive dominance (see Civil Service World).

Therefore, for the current executive, alleged judicial interference in the delivery of policy – the democratic mandate – must be restricted. The smokescreen which is being created by the executive is that the judiciary is over-reaching itself and stepping into the world of politics and policy in order to impress its own authority within the post-Brexit constitutional settlement.

The judiciary is enabled in this direction because of supposed ‘political litigation’. Political litigation is perceived by the executive to be legal challenges which seeks to attack the political will of government or undermine parliamentary sovereignty.

‘Political litigation’ is pursued through the use of judicial review by challenges to decision-making processes by government agencies. Judicial review ensures that the government acts within the law as enacted by parliament. Often at the core of such a challenge is reliance upon the Human Rights Act 1998 and the jurisprudence of the ECHR as developed (being a ‘living instrument’) by the European Court of Human Rights (ECtHR) through its jurisprudence.

What is “political”? This begs the question of whether all ‘political’ decisions – whether by central or local (or devolved?) public bodies – should be immune from legal challenge.

As to the second question. In Britain, judicial review is a relatively straightforward procedural challenge to decisions taken (or not taken) by public bodies. Once funding is secured (in itself a Sisyphean task) for making a judicial review application, the door to the court only opens ajar. Applications require permission from the court to proceed. Permission applications are initially made as paper submissions but can, within limits, proceed to oral applications. In 2018, only five per cent of applications for judicial review reached a final hearing in England.

Many challenges are settled between the parties. There are both merits and means tests required by the public funding bodies. Self-financing applicants will need at least £20,000 to commence proceedings. Challenges are often funded by way of online funding platform such as CrowdJustice. Applicants can confront adverse cost orders as another obstacle to a full hearing.

An elective dictatorship, which is effectively what exists in Britain following the most recent general election, assumes executive dominance at the expense of parliament and the judiciary. This means that the executive can command the legislative agenda and exercise what are in effect unreviewable discretionary powers. This is why the political motivation to restrict judicial review in Britain must be opposed and resisted.

• Christopher Stanley is a litigation consultant at KRW LAW LLP.