Throughout the course of history there have been countless examples where a decision-maker, when questioned, has taken a step back and announced that they have reviewed their original decision, and have concluded that they have done nothing wrong, and that their decision was the correct one.
Take, for example, the CIA’s post 9/11 interrogation programme, which was sanctioned by the US Government, and judged legal by the Justice Department; it was legal because the Executive said that it was.
A necessary system of checks and balances, is made more complex in cases of national security, intelligence gathering, and the infraction on the rights of those directly, and indirectly affected by surveillance and efforts at intelligence gathering. Therefore I wish to speak more generally but directly to efforts taken in the UK by the Justice Secretary, Chris Grayling, to limit access to judicial review.
Judicial review is a fundamental mechanism whereby the decisions of the Executive (the Government) can be challenged by its citizens, and a conclusion as to legality reached by an impartial arbiter; the Judiciary. This is the basis of the separation of powers, and current measures are aimed not as a direct attack on the Judiciary, but an attack on the principle of judicial review through a restriction of access to it.
Contained within the Criminal Justice and Courts Bill is a raft of measures designed to restrict public sector funding for legal services. Therein is a measure which states that a judge must refuse the opportunity for judicial review if it is “highly likely” that the outcome for the complainant “would not have been substantially different if the conduct complained of had not occurred”.
There are two points which arise from this wording, but first it is worth remembering that this is not the test for having a decision under judicial review made in favour of the complainant; this is the criteria which have to be met for the question to be asked in the first place.
The first issue is the standard of proof; that it must be “highly likely” that the outcome would have been different. This is a difficult test to satisfy; in effect one has to prove that they will be successful at judicial review before the option is open to them.
The second issue is that the outcome would have to be “substantially different”. It does not consider the wrongfulness of the conduct complained of, it does not matter in fact whether the actions were illegal, if the wrongful conduct affected the outcome, but not substantially, then the complainant is prohibited by law from seeking judicial review.
Those are the headlines; the extent to which that will be the case depends on the consciences’ of those politicians and Lords of whom the Executive is comprised, and whether judicial discretion will form part of the law when enacted.
Before moving on the discuss the potential for judicial discretion, it is necessary to convey the reasons why Chris Grayling feels that restricting access to judicial review is imperative. He has told the House of Commons that:
“[J]udicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision-making in government and parliament.”
“[P]arties should not be able to use minor technicalities in process as an excuse to bring a judicial review in order to delay an essential decision when there is very little likelihood that the outcome would be affected by that technicality.”
As Joshua Rozenberg suggests in the Guardian, the implication is very much that decisions as to legality should be made by Government and not by the Courts.
In October 2014 amendments moved by Lord Pannick QC, aimed to change “must” to “may” in order to introduce judicial discretion into the process. However MPs later restored the original wording of “must”.
Chris Grayling said there was an “exceptional circumstances clause which still allows judicial discretion in cases where there is a particularly distinctive characteristic”. Later, he explained “[t]he ‘exceptional circumstances’ provisions would allow a judge to say: This is a flagrant case and must be heard.”
However, when before the House of Lords once again, Lord Pannick QC informed the House that such a clause was not included. Stating:
“Since the Lord Chancellor in the debate recognised the obvious need for a degree of discretion in this clause, it is incomprehensible to me why the government are so determined that the clause must be enacted with no degree of judicial discretion.”
Grayling clarified that his statements to the Commons regarding discretion were inaccurate, and that no discretion is contained within the provision of clause 64. An amendment reinserting judicial discretion into the decision making process was passed in the Lords by a majority of 69.
The matter now returns to the Commons where Grayling would be well advised to let the matter pass without further amendment to this issue for risk of suffering a further defeat in the House of Lords. In his letter clarifying his inadvertent misrepresentation of clause 64, the Justice Secretary does admit to the existence of judicial discretion through the use of the “highly likely” test.
Therefore the Judiciary have been given inferred permission to ignore the strict statutory application of the test, and provide an informal method of reasserting judicial dominion over what is considered to be legal, or an abuse of power. Yet any statutory limit on the use of judicial review should be viewed unfavourably at best, and limits imposed by the Executive on their own methods of external accountability should be fought in a democratic process before they become law.