Background to Judicial Review
For the benefit of the lay reader it may be best to give a brief outline of areas surrounding judicial review before diving straight into the matter itself.
In The U.K. we have a tripartite system. The Executive, made up of the government; the Legislature, made up of Parliament and the Judiciary, made up of the courts. Parliament is the supreme law making body and any Act of Parliament can override any other body. It is the role of the Judiciary to enforce the law and in doing so it often has to interpret it. A vast amount of law however, has not been made through an Act of Parliament. It comes from common law, i.e. case law that has been developed over many centuries. In that respect the Judiciary does have the power to make law, to a certain extent. The Judiciary often pragmatically develops the common law and in doing so often amends or adds to the law. The key word there is pragmatic. The Judiciary cannot decided to invent a new law or to just remove an old one. If the question was asked to them, they would simply not make a decision and refer the matter to parliament to legislate upon.
Any decision that the Judiciary makes can be undone by Parliament in an Act of Parliament. For example if the Supreme Court hear a case and make a ruling a certain way, that would then be law which would have to be followed. If Parliament do not agree with the decision of the Supreme Court, they can pass an Act of Parliament the following day to give effect of overruling it. This does not happen very often, but legally it is there as a control in which the Legislature has over the Judiciary, re-enforcing the principle that Parliament is supreme.
What is Judicial Review?
Judicial review is a process in which the courts review the actions of the Executive (the government); not Parliament. When Acts of Parliament are passed they often give powers to the government to pass further law without the need for further Acts of Parliament. This is known as secondary legislation. What can result from this is that emanations of the state such as local councils etc. pass legislation which goes further than the powers given to them in the initial primary legislation. For example, a council uses a piece of legislation which gives it the right to build schools, instead to build houses. This would be going too far out of the scope of the initial powers granted. The process in which this could be challenged would be the process of judicial review. The courts have the power to review the initial legislation and make a ruling as to whether to council have exceeded the powers granted to it or not. It is not for the court to decide based upon what it thinks is right or wrong, instead it is for the court to interpret the original legislation and make a decision based upon whether the council has acted outside of the court’s interpretation of it. The judge therefore reviews the lawfulness of a decision or action.
Anybody has the right to bring about a judicial review if they have been affected by a particular decision, action, or failure to act of a public authority. A public authority may be acting unlawfully if it has made a decision:
- Without the legal power to do so (unlawful on the grounds of illegality)
- So unreasonable that no reasonable decision-maker could have come to the same decision or done the same thing (unlawful on the grounds of reasonableness)
- Without observing the rules of natural justice (unlawful on the grounds of procedural impropriety or fairness)
- In breach of European Community Law or the Human Rights Act
An application for judicial review must be made to the High Court and are increasingly being used to force accountability from decreasingly accountable agencies. Many government agencies which have already had their budgets reduced are crumbling under the pressure to do things right.
Challenges to Judicial Review
It is therefore understandable as to why Chris Grayling plans to reduce the number of judicial reviews. The last thing he wants is all of the government departments he has removed funding from to be increasingly challenged about their decision making. He feels there are too many judicial review applications and he wants to ‘drive out’ the ‘meritless’ ones. This is all very well and good, although it does not acknowledge the fact that these decisions are often very important to people.
Here are some examples:
- A UKBA (United Kingdom Border Agency) decision to remove an immigrant from the country, deporting them back to their homeland where they may be persecuted, tortured and killed.
- A social worker’s decision to remove a child from its parents.
- A doctor’s decision to turn of the life support system for a patient that is in a coma.
The decisions, one would expect, need to be the right decisions; made correctly and within the framework of the law. Often they are not and they need to be challenged through judicial review.
Liberty said the proposals represented “another assault on access to court” and on “democratic traditions.” Shami Chakrabarti, the organisation’s director said, “Judicial review is vital in allowing ordinary people to hold the state to account.” 
It is therefore submitted that restricting the availability or access to judicial review is another erosion to the rule of law. A concept in which it is becoming increasingly clearer that Chris Grayling knows nothing about, or perhaps just has a blatant disregard towards.
LLB (Honours) Student & Aspiring Barrister
 BBC News online 23/04/2013