The Justice Minister Chris Grayling MP has as recently announced plans to restrict the use of the remedy of judicial review. It is the case that the number of judicial review cases has increased greatly over the last 40 years and its use has sometimes proved controversial, and the great majority of applications fail. The Minister’s criticisms, however, miss the point in important ways. I am frequently consulted by individuals and businesses who complain that they have suffered at the hands of central government, local government, or some other public body. In almost every case I have to tell them that the body concerned cannot be held accountable in the courts unless there is a decision which could be the subject of a judicial review.
The fact is that public bodies have a great deal of power, usually conferred on them by Acts of Parliament. These powers are not always exercised wisely or fairly but in most cases the only hope of preventing or reversing a bad decision is by making an application to the High Court for a judicial review. Public bodies resent having their plans held up, and cite for example the fact that every time a major scheme involving the development of an airport is announced complex judicial reviews follow which can take years to resolve. Whether or not these cases are worthy of criticism, for every bad example there will be others, which work to the benefit not only of the individuals concerned but also of society. Virgin Rail’s challenge to the award of the West Coast franchise to a competitor was an example of a judicial review which led to the Government acknowledging that their decision making had been hopelessly flawed: the result is no doubt extremely disruptive, but it might lead to a better decision in the future as well as giving Virgin Rail another chance to get what they wanted.
It is right to say that many applications fail, but this is partly because the body being challenged is obliged to explain itself fully and coherently in a way which it may have failed to do before the court process began. The threat of having to explain yourself to a judge is useful reminder of the need to act within the powers given and to make sensible decisions, and court cases can do more for transparency that any departmental policy extolling ‘open government’.
If there really are numerous unmeritorious judicial review applications being pursued, then there are ways of preventing court processes being abused. Many commentators think that one of the problems with judicial review is not that there are too many cases, but there are too few suitably qualified Judges available to filter out the bad ones and give proper attention to those which have merit.
I can only hope that the Minister’s frustration with what he seems to regard as an unnecessary brake on policy initiative does not translate into a successful attack on fundamentally important constitutional principle, which should ensure that public bodies are always held accountable to the rule of law, and there is an accessible means of ensuring this happens.