Legal Expert: BoJo's Judicial Review Reform Boosts Arbitrary Concentration of Power in No 10's Hands

The Johnson government's Judicial Review and Courts Bill has prompted a lot of controversy and criticism. Although No 10 argued that it is not planning to limit judicial prerogatives, British academic Stephen Clear warns against an excessive concentration of power in the hands of the UK government.

Downing Street has signalled that reports alleging that UK Prime Minister Boris Johnson is seeking to curtail court review powers are not accurate. "We fully respect the constitutional position of judges and the judiciary, and it is part of the Government’s role to protect that position", the prime minister’s official spokesman said on Tuesday, as quoted by the Evening Standard.

The Times suggested on Monday that BoJo plans to allow ministers to shred undesirable legal rulings which come as a result of judicial reviews. Judicial review is the means by which the British courts check the legality of decision-making by UK public bodies. In March 2021, the government kicked off a consultation on its proposals to reform the judicial review mechanism. The move came after a series of political clashes between the government and judges, including a Supreme Court ruling that the prime minister unlawfully prorogued Parliament amid the Brexit political crisis in 2019. According to No 10, The Times' article does not provide an accurate characterisation of the action the government is taking.

“What we are doing is, through our Judicial Review and Courts Bill, is to defend the judiciary from being drawn into political questions and preserve the integrity of judicial review for its intended purpose, which is to hold the Government to account, apply the intent of Parliament and protect individuals", BoJo's spokesman elaborated.

BoJo's Reform Affects Broader Aspects of UK Constitution

PM Johnson's decision to reform judicial review featured as part of the Conservative government's 2019 election manifesto commitments, according to Stephen Clear, lecturer in constitutional and administrative law, and public procurement at Bangor University in the UK.

Back in 2019, BoJo made it clear that he respected, but disagreed, with what the Supreme Court justices decided with regard to his decision to prorogue Parliament, the academic recalls. The PM felt that it was "clearly within his remit to exercise the historic power of proroguing Parliament, and that these cases were borne by claimants who wanted to frustrate the Brexit process, and, in their view, conduct politics by other means", according to the academic.

"Specifically, Boris Johnson promised, post-Brexit, to look at the broader aspects of the UK's constitution. In respect of judicial review, they said: 'We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by other means or to create needless delays'", Clear says.

Clear highlights that the UK government tasked an independent panel with more than just considering whether the government should have the power to overrule judicial review results: "The panel was in-fact given the remit of considering much more far-reaching reforms", he says.

"In essence, the panel was given free-reign to propose re-writing the judicial review rulebook - especially when asking the independent group to consider whether the terms of judicial review should be written into law (rather than based on common law rules, established by case law precedent by the courts); and whether certain executive decisions should be decided on by judges at all; as well as which remedies/outcomes should be available in claims brought against the UK government", the lecturer underscores.

Arbitrary Concentration of Power in UK Gov't Hands

The reform plays into the hands of the government, especially when it comes to decisions which – according to the government – should not be delayed as a result of pending applications for judicial review, according to Stephen Clear.

At the same time, one needs to keep in mind that the subject matter of judicial review proceedings is much broader than the UK government's actions, the academic stresses. These reviews could relate to public procurement, the building of a school or hospital, or an urgently needed public service.

"More broadly, it could be argued that the reforms play to the politics of a stronger UK government, which cannot be as readily embarrassed by judges and courts in certain areas", Clear says. "The key question that needs to be explored is that of 'in which areas would the Government be able to overrule the courts' decisions?' To my mind, that question alone, is a slippery slope for any country that observes the Rule of Law".

While critics of judicial review have long referred to "delays" accompanying the procedure, a number of judicial reviews conducted during the pandemic obviously helped uphold principles of openness, transparency, and fairness in public sector decision-making, according to the academic. When it comes to the Supreme Court's decision about Johnson's prorogation of Parliament, it would be wrong to see it as the judicial branch's interference in British politics, Clear points out: "The judges were mindful of their constitutional role in reviewing the lawfulness of the powers being exercised, not the politics of the outcome", he says.

The lecturer believes that the criticism of BoJo's latest initiative is justified, "given the wider constitutional principles that are at stake". Clear emphasises that an independent judiciary, which can provide safeguards against the arbitrary will of a government, "has long been a cornerstone of the UK's constitution, and a key criterion for any jurisdiction which observes the rule of law".

"The judiciary is a fundamental part of facilitating a system of checks and balances in monitoring the power exercised by the UK Government, particularly in reviewing the exercise of prerogative powers (in preventing the extension of Government powers, or creation of new ones)", the academic says. "It is important to recognise that, whilst we imperfectly observe the principle of Separation of Powers within the United Kingdom, a key part of what the judiciary do is uphold the sovereign will of Parliament, as well as its democratic (elected) function of holding the Government to account".

Clear expresses concerns that a lot of what has motivated the calls for reforming judicial review has led to a "distortion of the arguments".

"For constitutional lawyers, it is worrying, and a cause for concern, that we continue to see an almost identical distortion of the arguments surrounding the role of the law, human rights, and judges' ability to judicially review decisions in 2021, specifically in respect of asylum seekers' rights, and the human rights of those crossing the English Channel", Stephen Clear notes. "We should be concerned by attempts to strengthen an arbitrary concentration of power in the hands of the UK Government".