The Law Society had set out six fundamental principles that it believes the government’s Independent Review of Administrative Law (IRAL) must protect when considering reforms for judicial review.
What is Judicial Review?
While the government makes the law, it also is bound by it once it has come into force. This means that there must be a system in place to ensure that the government abides by the rules, and that individuals, businesses and organisations have the ability to assert their rights where they believe that the government and other public bodies have acted unlawfully.
In a judicial review case, a judge will examine a decision, action, or inaction of a public authority, the government or a regulator and decide whether it has acted within the powers ascribed to it by law, using lawful procedures. A ruling cannot be made on the merits of a decision.
Having an effective judicial review is essential to the functioning of society. It acts as part of the ‘checks and balances’ upon the government to ensure that it uses its power reasonably and not to the detriment of its citizens.
The IRAL is chaired by Lord Faulks QC, who previously served as Minister of State for Justice between 2014 and 2016. Its purpose is to examine trends in judicial review, and then decide which, if any, options for reform might be justified. While conducting the review, it will consider how the importance of the citizen being able to challenge government decisions can be balanced with the ability of the government to govern effectively under law.
The Six Fundamental Principles Laid Down by the Law Society
The Law Society has called for the IRAL and the government to ensure that six fundamental principles are protected and enhanced by any proposals for reform. The fundamental principles are as follows:
This is the fundamental purpose of judicial review. Judicial review must be able to determine whether the actions, inactions and decisions of public authorities are lawful. This is essential to upholding key principles of the UK’s constitution, namely Parliamentary sovereignty, democracy the rule of law.
Judges must be free to exercise their duties free of political considerations, persecution, and criticism. The independence of the judiciary is essential to any functioning legal system, and comes into particular relevance in judicial review, where law and politics are brought into very close contact. Any reforms brought about by the IRAL must protect the independence of the judiciary so that they can fulfil their constitutional role of upholding the law.
It is essential that anyone who is affected by the action of a public authority is able to challenge it. This includes both citizens and non-citizens – such as where an individual wants to challenge an immigration decision.
To ensure that someone can assert their right to bring a claim, it is fundamental that there are as few barriers as possible to the judicial review process. It must also be affordable. Where individuals lack their own financial means, adequate levels of legal aid must be provided to ensure equal access to the courts.
The breadth of the decisions subject to judicial review is constantly expanding and as such judges may seem to be examining decisions which may be political. It is important that judges refrain from making rulings that second guess the decisions of politicians or encroach upon the legitimate use of state power.
However, there should be no artificial or harsh restrictions upon the types of decision that can be reviewed. Given the inherent power imbalance between the state and the individual, it is essential that people can challenge decisions which have an impact upon their lives.
Adequate alternative mechanisms must also be put in place for people to be able to assert their rights.
Given that the facts surrounding judicial review cases can be so diverse, the range of remedies available to judges must be equally as diverse in order to ensure that a just outcome is reached in every case.
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