22:12, October 25 124 0 theguardian.com

2020-10-25 22:12:04
Restricting judicial review will undermine democracy, panel told

Restricting the right to judicial review will undermine democracy and harm the most vulnerable, according to the Law Society and other legal organisations.

Their submissions to a government-appointed panel have been published as concerns grow that ministers are trying to limit future challenges to their policies following government defeats in the supreme court over the Brexit article 50 and prorogation cases.

The panel of experts appointed by the Ministry of Justice is chaired by Lord Faulks QC, a former justice minister. The Independent Review of Administrative Law has been asked to consider the need for potential reforms of judicial review.

Faulks has said it will examine “the need to strike a balance between the right of citizens to challenge government through the courts and the elected government’s right to govern”.

In its submission, the Law Society of England and Wales said judicial review claims were an essential element of democracy that enabled anyone affected by public bodies’ decisions to challenge them in the courts.

David Greene, the president of the Law Society, said: “Judicial review allows ordinary people to ask an independent judge to decide whether a public body has acted lawfully or not.

“There is an imbalance of power between individuals and the state, which judicial review bridges – it must be effective and accessible to all. The availability of this test drives good governance. It also enhances trust in state institutions and public decision-making.”

Advocates for Animals, the UK’s only law firm specialising in animal protection, has submitted evidence from a coalition of 50 animal rights groups, including Compassion in World Farming, urging judicial review not to be curtailed.

Edie Bowles, a solicitor at Advocates for Animals, which she co-founded, said: “A restriction on judicial review would be a seriously retrogressive and unnecessary step.

“With animal protection, judicial review is the only way to ensure that practices are being regulated lawfully and that animals are receiving the protection which parliament intended.”

The Administrative Law Bar Association, which represents barristers working in public law, said in its 58-page submission: “It has hitherto always been left to the courts, as the guardians of the standards of legality to which this constitutional role is entrusted, to develop and apply the principles of judicial review as part of the common law.

“Any proposal to codify, limit or otherwise alter the scope of judicial review by legislation inevitably enters deep constitutional waters.”

The Public Law Project said: “Reform would represent a significant constitutional step, not one which should be taken in the absence of a thorough process and the right evidence base … The limitations that have been placed on the panel are such it is hard to see how it can provide a sound basis for reform.”