The Government independent consideration on Judicial Review: What does this mean for the future?

SMQ Legal are proud to help student interns develop their career by shadowing our solicitors and team members.  Here one of our students has written a legal interest piece ….

Judicial review is one of the ways the courts are able to check and balance the work of the government and ensure that they are not acting outside their role. An individual, like you and I, are able to bring a claim against a public body if we feel they have not been fair. The principle of justiciability is the idea of whether a matter can come to the courts to be settled by the courts and this principle allows for individuals to take public body matters to court.

The government has recently launched an independent review on the current system of judicial review to analyse whether it needs to be reformed. The purpose of this review is to balance the people’s need to challenge the lawfulness of the government’s decisions through the courts and the government being able to do their role effectively. The main points that are to be  reviewed are whether judicial review should be codified, the legal principle of justiciability and how it affects the exercise of public law power, whether exercise of public law power should be justiciable and whether procedural reforms of judicial review are needed.

Currently, an individual can ask for permission to take the matter to court under part 54.5 of the Civil Procedure Rule form and it is accepted under s31(3) of the Senior court Act 1981 if they have sufficient interest (locus standi).

It seems as though the government is deciding if their work should be under the scrutiny of the court because they feel they cannot carry out their role if their decisions are subject to the scrutiny of the courts. If the review leads to the exercise of public law being non-justiciable then it would be harder for people to have standing and bring a case against the government. This leads to the principle of checks and balances and the rule of law being undermined because the courts are not able to check and balance the work of the government if it is difficult for individuals to get permission to take a matter to court.

If this is the case, then cases like R v Miller would not have been decided differently. 

What does this mean for the future?

If the government decide that public law power should not be justiciable then it will be difficult for individuals to get permission to bring a claim because their decisions cannot be interfered with by the courts. For future clients, this means that it will prove difficult to dispute decisions made by the government, making it difficult for social justice to happen.

At the moment it is difficult to gauge what will be decided following this review, but this could change the way individuals are able to hold public bodies that are controlled by the government accountable.

By Djeinabo Djalo

Reading University Student Intern



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