Western institutions have delivered enviable levels of economic growth and wealth, historic declines in war and violence, cultural enrichment, and liberty. The Washington consensus is worth preserving because it helps the poorest countries, and creates the conditions for helping the relatively poorest people even in developed countries.
Whilst there is no need to rush to accusations of fascism or authoritarianism, there is an undercurrent which seeks to undermine the golden goose that is our institutional framework. One of these specific undercurrents relates to the judiciary. The specific criticism is that judicial review - the ability to subject government decisions to legal challenge - has led to systemic judicial overreach paralysing government and/or led to the involvement of the judiciary in matters which should be left to elected politicians.
This view is not just wrong on the facts, but it is completely antithetical to the common law tradition - something which is ironic given its proponents spend their time supporting constitutional vandalism and lamenting the frankly cosmetic changes like moving from the House of Lords Appeals Committee to the Supreme Court, or acting as though the Fixed Term Parliaments Act 2010 was some constitutional affront which cannot easily be side stepped.
How often does the government actually lose a judicial review?
In 2019, 3,384 judicial reviews were lodged, 27% were withdrawn before a decision on permission was made; of the total only about 25% of cases lodged are given permission to proceed (20% is the norm over the years). It is worth emphasising that more cases get withdrawn than obtain a mere permission. It is judges who grant permission, which should give an indication that there is no excessive judicial activism.
Of those that are given permission to proceed (i.e., we are already down to 25% of claims!), there’s varying chances of success but in govt cases, the figures are relatively low - but even looking at the department most prone to losing, approximately 75% of judicial reviews were unsuccessful against the MoJ (and we are excluding all of the cases that were not granted permission, i.e., this figure is cloaking the fact that it is extra ordinarily rare for government to lose a judicial review). Again, that’s judges are siding with the government in almost 4 out of 5 cases doesn’t scream judicial overreach.
But those limited numbers are still a problem, right?
The government’s own appointed Independent Review of Administrative Law embarrassingly (for the government) concluded that “the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action,” and said that “politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.” It further concluded that:
Those government departments that gave an estimate of their cost in financial and human resources gave little indication that the cost was overwhelming or in any way disproportionate to the value of maintaining “the lawfulness of executive action” … none of the 84 responses to the question whether specified grounds for review “seriously impeded the proper or effective discharge of central or local government functions” suggested that this was the case.
We took note too of a recent impact study that addressed a general assumption that judicial review tends to be “an expensive and time consuming detour concerned with technical matters of procedure that rarely alters decisions of public bodies”. Its impact on public administration is “largely negative because it makes it more difficult for public bodies to deliver public services efficiently”. The authors found no evidence that this was the case; indeed, they came to the conclusion that the assumption was at best misleading and generally untrue.
Indeed, the Independent Review concluded that the view that seeking redress needed to be balanced against effective governances “not an approach with which the Panel felt wholly comfortable” because in their words:
To present judicial review in terms of an argument between the executive and the citizen is only part of the story. Protection of the individual, redress of grievance and defence of private interest are of course strong historical themes in the common law, and therefore there is some truth in the idea of judicial review as a vehicle for the protection of private interests and of a “rights-based” system of judicial review. But judicial review serves many other functions, in many of which government and public authorities have a significant interest.... The relationship of public bodies to judicial review may be a very positive one. All public bodies including government departments have an interest in legality as an element in good administration – the current edition of JOYS is described as “a guide to good decision making”. Again, an important use of judicial review – that may, as it did in the Brexit cases, have political connotations – is to determine relationships between public authorities and sort out disputes between them that cannot be resolved in a political process.
To put this another way consider Craig (2021):
The writers who speak most fiercely against judicial review show no inclination to engage in quantitative analysis, or to determine whether their finding in a particular case is borne out by other case law… I have, for forty years, written a text on Administrative law. I estimate, having just completed a new edition, that I read approximately 800 cases per year. Let us take this figure as a starting point. There is nothing canonical about it. The calculus set out below is not altered if the numbers are run from a different base line of 700 or 600. UK courts are the subject matter of the inquiry, and what follows is therefore confined to them. If one believes that there is some systemic judicial overreach, or serious incidence thereof, then it must be substantiated on the preceding numbers. Thus, let us imagine that 5% of cases are alleged to be troubling in this regard. This requires identification of the 40 cases per annum that fit this bracket, assuming a benchmark of 800 cases per annum, or 30 cases per annum if it is 600 cases. This must be done for every year. By parity of reasoning, if one thinks that judicial overreach is present in 10% of cases, then the person making the claim must specify the 80 or 60 cases per annum where this malaise is to be found.
Those who have issues with judicial review are unlikely to be able to list 60 cases for all of the history of common law, let alone the last year. The Judicial Power Project have pin-pointed 50 cases, stretching back to 1901; I’d encourage you to randomly click on their list to see if the judgments are particularly egregious to you.
The fact that judicial review is not a systemic problem statistically, or that people cannot name 60 cases a year which are causing insurmountable issues, won’t be surprising when you appreciate extremely high bar to a successful judicial review (eg a public body or government’s action has to be “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” before it can be quashed), and the wide degree of discretion afforded to the government on matters of high policy or technical considerations.
Ah, well, nevertheless
There are those who would argue that (i) the high threshold described above; (ii) the fact that the overwhelming majority of judicial reviews fail; and (iii) the inability to pinpoint a mere 5% of cases should not undermine the argument that the judiciary overreaches. There are two points further to make here: one related to the ignorance of what legal cases consider, and the second related to the ignorance of cases which side for the government, even when the political considerations are as acute as the alleged examples.
On the first, consider a decision which was reportedly about whether Heathrow expansion should, or should not, go ahead. The case was, in fact, nothing to do with whether Heathrow should or shouldn’t go ahead. The case was in fact boringly and ultimately about whether the Paris Agreement, an international agreement on climate change, could be described as “government policy” for the purposes of the Planning Act 2008. If it was, then it would need to have been considered by the government in designating a particular policy. When the case was before the Court of Appeal they made this point clear:
These judicial review proceedings… do not face us with the task of deciding whether and how Heathrow should be expanded. That is not the kind of decision that courts can make, and is ultimately a political question for the Government of the day. Rather, we are required to consider whether the Divisional Court was wrong to conclude that the Government’s policy in favour of the development of a third runway at Heathrow was produced lawfully. That is the question here. It is an entirely legal question.
Whether an international agreement was, or was not, ‘Government policy’ is an eminently and reasonably arguable point given the absence of a statutory definition. The failure to acknowledge that this case was in fact about a poorly drafted legislation, rather than Heathrow Expansion, is probably reflective of the sensationalism of the media and/or a lack of understanding. But this is precisely the pattern those few - not 60 as per the rigour demanded by Paul Craig (see above) - cases follow: a misunderstanding of the underlying issue, the failure to recognise the reasonable arguability of a point and then jumping on the political implications of the judgment even where that was not an issue before a court.
The same point applies to the two Brexit-related cases brought by Gina Miller. For my part, I think Miller No. 1 was wrongly decided. But that disagreement turns on a reasonable, professional (and boring) legal argument and not one based on erroneously believing that the judges were led by politics. Miller No. 1 was the question of whether Article 50 could be triggered without Parliamentary approval. The majority of in the Supreme Court decided the answer was no not because they were Remoaners, but because they considered the prerogative power cited by the government to engage in foreign affairs could not be exercised in a way so as to upend legal rights enshrined in UK law via our membership of the EU.
Miller No. 2 is a case I think was correctly decided and its bemusing that those who think it epitomises judicial activism would dare, as they often do, use Dicey’s name. The Supreme Court - in a unanimous 12-0 judgment - confirmed that for the executive to exercise its powers to subvert the role of Parliament was not permissible. It is gobsmacking that a blatant attempt designed to stop Parliament from making laws or scrutinising the executive - whether or not it did in fact is irrelevant - is held up as an example of judicial activism. But even here, the court showed deference, limiting when a court could take this ‘exceptional’ course of action.
The point here is that the people making these accusations of judicial activism are often too certain - too certain that these cases are about the political implications, and too certain that it is explicit or implicit bias, rather than reasonable disagreement on the law.
On the second point, there are a line of unseen cases which are often ignored, and which stand in completely contradistinction to an activist court. Consider, for example, recent Net Zero legislation - the judicial reviews of the government’s decisions on Southampton Airport, the Drax Power Station, the government’s entire road building programme have all failed. There are various other examples: the decisions relating to Julian Assange, keeping children in solitary confinement, the two-child benefit cap, the decision to grant a wide-ranging injunction for the entire strategic road network, the Rwanda policy - all of which are apparently not subject to these political biases of activist judges (leaving aside that it is the judges who are responsible for only 25% of cases being given permission, and then less than 25% of the remaining being successful). Indeed, more recently the Privy Council (made up of members of our Supreme Court) decided that a ban on gay marriage in Bermuda should be upheld.
It is bemusing to read two opposing sides either decry the apparent ‘restrictive’ approach of the Supreme Court, or writing glowingly about the same phenomenon. In fact, both arguments are based on over-reading decisions. The truth is that the relevant legal tests haven’t changed, and both ignore how the cases turn on non-political, legal arguments. There are instances where the law is “developed”, but virtually none of those examples are cited, let alone know by the proponents of the flawed view.
What can be done?
Courts are placed in an unenviable position of determining disputes in a pluralist society, and where the currently (and soon to be previous) administration has subverted, or attempted to subvert the rule of law. That the issue of judicial activism is overblown does not mean there are not things to reduce the scope of costly legal challenges.
Rather than ignorantly claiming there is a systemic issue with the courts or political bias, here are some concrete steps the government could take to reduce the difficulties courts have to deal with.
Consultation - there is a raft of case law about whether a public body has, or has not, consulted adequately. The famous Gunning principles are the first port of call for most objectors to government policy. For my part, I think “consultation” is a ruse: it is unrepresentative, and a mechanism for erecting hurdles, not for improving schemes. Passing a General Consultation Bill which sets out proportionate requirements for consultation would assist good governance and reduce the number for legal challenges.
Legitimate Expectations - one of the grounds of judicially reviewing a public body is when a public body gives you a ‘legitimate expectation’ that they will do something, and then they don’t. This has given rise to a number of cases where there is a dispute about whether a public body has, in fact, explicitly or impliedly given a commitment. Passing legislation which defines the scope of a legitimate expectation would provide certainty for all parties, and reduce the number of legal challenges.
Make the Public Sector Equality Duty work - as it stands, the Equality Act 2010 mandates public bodies with a public sector equality duty. It is the basis for a number of challenges. For example, the issuing of guidance by TfL in relation to taxis was momentarily judicially reviewed because in the view of the High Court, TfL had not given conscientious consideration to the need to consider equality impacts. The Court of Appeal disagreed, but it does show how this duty is leading to needless court action. The duty should be reformed so it applies to strategic level plans; so that public bodies are not having to prepare tick-box assessments for each micro-decision.
Net zero - I noted above that a number of carbon related judgments had been decided in the government’s favour, but some have not. For example, the recent decision on the Net Zero Strategy - that decision didn’t quash the government’s strategy, but ordered them to explain how they would meet the overall Net Zero target. As it happens, I think the Net-Zero-related judicial reviews should reduce over time as the courts determine the over-arching principles, but government could help speed this up by updating National Policy Statements with the detail of acceptable methodology for carbon assessments for major infrastructure, and using the powers they are seeking to overhaul Environmental Impact Assessments to more clearly define how developers are supposed to carry out assessments.
A culture of legal positivism - the issue in a lot of what are considered to be problematic cases is that courts are being asked to opine not on compliance with the strict letter of the law per se, but whether decisions reached by other public bodies on matters of policy is legitimate. The PSED discussed above is one example. But planning policy is another example - the law requires local planning authorities to consider local policies and national policies; whether they have then turns on looking at how such decisions were reached. The court has a high bar for a successful judicial review, and will grant a wide degree of appreciation to local authorities, but a reduction in policy-based decision making generally would assist. Unfortunately, we are increasingly moving toward a system where policy-concepts are entering into the law. It needs to stop, but I don’t think government have even appreciated this change is well underway.