No justification for Tory curbs on judicial review

The Conservatives’ election manifesto, published a week ago, was full of unexpected promises. But what can we expect our justice system to look like if Boris Johnson wins a majority on 12 December? 

We are told that a Conservative government would ‘pilot integrated domestic abuse courts that address criminal and family matters in parallel’. These have been tried before. An integrated domestic violence court opened in the London borough of Croydon in 2006. Researchers from the Ministry of Justice had expected the court to handle around 75 cases during an 18-month period. In fact, only five cases proceeded through the court during its first year and only one of those involved directly overlapping criminal and civil cases. The court was quietly closed.

Integrated domestic violence courts have had more success in New York state, where the concept of problem-solving family drug and alcohol courts is well established. There have been calls for a ‘one family, one judge’ approach in Scotland, but a report published by the Scottish government three months ago highlighted the practical problems involved, including the risk of prejudice.

The Conservatives are also promising a royal commission on criminal justice. The last such royal commission was set up in 1991, immediately after the wrongful convictions of the Birmingham Six were set aside. Far from building a public consensus, it tried to operate under conditions of maximum secrecy. Chaired by Viscount Runciman of Doxford, it reported in 1993. As I wrote at the time, practitioners thought its proposals impractical, academics considered it unacademic and reformers regarded it as unreformed. Its recommendations on retaining the right to silence were immediately rejected by the government and its main legacy is the Criminal Cases Review Commission, which would have been created anyway.

Royal commissions used to be the preferred response to a major system failure. But they are now seen as ponderous and ineffective: as Harold Wilson famously said, they ‘take minutes and waste years’. It is nearly 20 years since the last royal commission was set up and the well-respected Institute for Government says there are now much better ways of developing policy.

One manifesto pledge on constitutional reform generated a huge response on my Twitter feed. It was not the plan to create a ‘constitution, democracy and rights commission’ that would ‘come up with proposals to restore trust in our institutions’. It was not even the promise to ‘update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’.

It was a pledge to ‘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 another means or to create needless delays’.

On a superficial level, this can be seen as a summary of the existing law. Judicial review does protect the individual against the state. If a politician has taken a legitimate policy decision, judicial review will be refused. Strict time limits ensure that claims cannot be used as a delaying tactic.

But many people saw this as deeply sinister. It suggests that Conservatives believe that judicial review is being abused. It echoes Lord Sumption’s claim, in his Reith lectures this year, that the courts have ‘inched their way towards a notion of fundamental law overriding the ordinary processes of political decision making’. The former judge continued: ‘To adapt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means.’

Sumption made no mention of the fact this jibe had been twice dismissed by senior judges a few months earlier. ‘Judicial review is not, and should not be regarded as, politics by another means,’ they said.

And why does the manifesto refer to an ‘overbearing state’? What if the state takes a decision that is not overbearing but is simply unlawful, because, for example, it has exceeded its powers? Will judicial review no longer be available?

How about other bodies that exercise public powers – courts, for example? Only this year, a claimant brought judicial review proceedings against a magistrates’ court that had wrongly issued summonses accusing him of misconduct in a public office. Who was the successful claimant? As the solicitor Daniel Machover reminds us, it was Boris Johnson.

Many of my Twitter followers saw this pledge as a response to the successful prorogation challenge brought against Johnson by Gina Miller and Joanna Cherry. If that’s his problem, the answer is to put the prorogation power on to a statutory footing.

But it is no justification for trying to limit judicial review. The courts are perfectly capable of ensuring that this vital remedy is not ‘abused’. Far better to leave it to them.

joshua@rozenberg.net