On Judicial Review: A Tool, A Sword, A ShieldPosted: November 20, 2012
As a community activist in an area like many others where residents are seeing the impact of national cuts trickle down to local decision making, the words ‘judicial review’ seem to be the most frequent ones I hear. I don’t know what that says about me, or where I live, but there we are.
The first point I wish to make may seem obvious but it is worth making – judicial review is a way residents and interested persons can question the way in which the decision has been made, rather than the merits of the decision itself. The latter, quite rightly, is the preserve of politicians. The former, rightly, is part of a wider system where the judiciary, Parliament and the Cabinet hold each other to account.
I wrote much earlier about the attack on our democratic and judicial systems by this present government in removing independent judges’ decisions from the question of whether a secret trial is to be held. These proposals are currently being scrutinised by the House of Lords. In a timely coincidence, this week, David Cameron has announced that the time limit for making judicial reviews will be limited because they curb executive decision-making.
The time limitation period is 3 months from the point at which the decision was made, unless there is good reason (and I mean, really good reason) for why this limitation period should be extended. Joe Bloggs on the street is already pressed for time – to seek legal advice, find funding and/or a good pro bono solicitor, figure out their grounds for review, write a pre-action letter, and issue a claim form. In light of these facts, the coalition government has launched a trenchant attack on accountability, and also on the value of equal access to justice. Never has the old adage; justice is open to everyone – like the Ritz hotel rung so true before.
David Cameron has also announced that the requirement to have an equalities impact assessment before making a decision is to be scrapped; and in general that he thinks we have too many judicial reviews in this country. This ignores the fact that judicial reviews are incredibly important and have the capacity to improve decision-making and policy making. They provide a framework around which public decisions can be properly made, and like equality impact assessments, can be a tool to develop, road-test and strengthen policies and practices as they are delivered on the ground.
It is unsurprising that the government wishes to curb judicial review, given the reckless way in which they have entered into so many of their decisions without proper consultation. But they remain a critical part of shining a light upon the failure to follow proper procedures and the failure to act in an accountable way. Doing things properly is a necessary part of doing things well. Judicial review is so disliked by many politicians because they have not adapted to doing things in the right way.
I’ve seen this happen in Barnet in my role as a local activist and also as a McKenzie friend on various issues – where executive councillors, had they been properly trained on the right way to go about doing things, and had they not had such blatant disregard for the rule of law; would not be at risk of judicial reviews on key decisions – such as the decision to close local libraries, change the library strategy without consultation, and the decision to enter into a £1bn gamble of public services (the now notorious One Barnet programme) by selling them off without informing residents of the plan. The idea that judicial review is a politician’s tool and not just a sword against which politicians should defend themselves seems to have completely passed Cameron and other decision-makers by.The solution is not, therefore, to drop it as a tool but to ensure that councillors, officers and politicians in general have a better understanding of its role and its remit.
Judicial review has an increasingly important role to play in strengthening democratic accountability for these reasons. But it is, as well as a tool, undeniably a sword. If it wasn’t – the current proposals would not be so controversial. It allows responsible and interested individuals/organisations with expertise to hold politicians to account; and it allows individuals to protect themselves by questioning the way in which decisions affecting them directly have been made – forcing public bodies to make them fairly and transparently. This is why John Sullivan, who is judicially reviewing the aforementioned One Barnet programme in his capacity as the father of a disabled girl has the ability to do so.
As well as being both a tool and a sword – it is, interestingly, a shield. This is a growing area of the grounds for judicial review. Not many people know, for example, that as well as launching an independent judicial review action, it is possible to rely on grounds for judicial review as a defence to proceedings which have been brought by public authorities. This usually tends to happen where there are possession proceedings that have been lodged – and is an interesting area where key issues in property law and key issues in public law collide or overlap.
And I have one final point to make on the alleged growth of judicial review. The number of non-asylum and immigration related judicial reviews in 2011 were 2213. Considering the number of public decisions that get made every single day of our lives; and considering the cost of bringing such actions, judicial review as a recourse remains incredibly rare. Scaremongering as to the ‘explosion’ in numbers of judicial review is precisely that.
It is for these above reasons; and for the versatility of judicial review as a tool, a sword, and shield that all democrats and public minded individuals should be opposed to Cameron’s current proposals.