Judicial review is a key form of legal claim that enables people to challenge unfair government policies or breaches of human rights. This government’s Judicial Review Bill is an attack on its foundations, altering how judicial review works to remove a significant amount of its power – letting ministers and public authorities get away with unlawful and unjust policies that lead to people being homeless, detained, abused or deported (for example). GMLC campaign volunteer Sakina Rehman writes on two examples of how judicial review has been crucial to access to justice in housing and employment law.
The new Judicial Review Bill
The new Judicial Review Bill, which has now reached the Final Stages in Parliament, contains key provisions that attempt to significantly change the way the British constitutional system operates, and in a way that not only threatens individuals’ access to justice, but ultimately compromises the rule of law. Judicial review is a process by which the courts assess the lawfulness of decisions made by public authorities. It is therefore a system of checks and balances used to ensure that public authorities, including the government, do not exceed their power and breach individuals’ rights. The government has claimed that the new Bill would enhance the administrative efficiency of the judicial review system. However, academic and political commentaries contend that it constrains the judicial scope in scrutinising decisions made by the executive branch, leading to the government granting itself unprecedented power.
As an example, judicial review has been a key tool for preserving housing and welfare rights. This is evident in a string of bedroom tax cases which arose as a result of Regulation B13. Regulation B13 was secondary legislation in relation to housing benefit regulation brought in 2012. It introduced a tax on housing benefit, and thus reduced benefits by 14% if households had a spare bedroom. The implications of this were that people with disabilities or their carers were unfairly subjected to this regulation, leading to legal claims which became known as ‘bedroom tax cases’. An example of this is the RR case, where the claimant’s benefit was reduced because he lived in a 2 bedroom flat with his partner. The local council applied Regulation B13, viewing the second bedroom as a ‘spare’. However, the Supreme Court ruled in November 2019 that the council acted unlawfully as RR was the main carer for his partner and used the second bedroom to store medical equipment and supplies. Therefore, it was ruled that applying the bedroom tax was unjustified discrimination. Another judicial review which involved bedroom tax for carers or people with disabilities is The Supreme Court ruled that the housing benefit reduction in this case was unlawful disability discrimination as the additional bedroom was not a spare room, but required to store medical equipment.
Lady Hale, a judge in the Supreme Court until her retirement in 2019, notes that these profound judgements were instrumental in restoring full housing benefits for 130 ‘lookalike’ cases in England and Wales and 25 in Scotland. This wide-reaching impact evidently highlights judicial review as a key mechanism in protecting human rights from the effects of secondary legislation. Secondary legislation can be made by ministers without as much oversight as primary legislation (such as ‘Acts’), and so it is crucial that scrutiny is applied by the courts to prevent ministers from quietly introducing unjust rules and regulations.
Employment rights and access to justice
Another instance where judicial review has protected and maintained the right of access to justice was in relation to employment tribunal claims. This was under jeopardy when the government introduced an employment tribunal Fees Order, which stated that to bring a claim to an employment tribunal, an individual would have to pay a fee. The fees were between £390 and £1200 depending on the type of claim. The Order was held to be unlawful by the Supreme Court in R (on the application of Unison) v Lord Chancellor  UKSC 51. In its judgement, the Supreme Court concluded that the Order unlawfully hindered access to justice because since the Fees Order was introduced, the number of employment tribunal claims had drastically decreased. Additionally, the Supreme Court, in assessing whether the fees prevented access to justice due to its affordability, looked at ‘the likely impact of the fees on behaviour in the real world’. The Court found that the fees were not ‘reasonably’ affordable as low to middle income households would have to sacrifice ‘an acceptable standard of living’ in order to pay the employment tribunal fee. Additionally, the Court further deliberated that even if the fees were affordable in some cases, they could make a claim ‘futile’ or ‘irrational’ if the fee were a substantial percentage or even higher than the award amount. Thus, the judgement referred to evidence regarding the particular decline in lower value claims.
Moreover, the Supreme Court stated the significance of the rule of law and how it is upheld by ‘the constitutional right of access to the courts’. The Supreme Court concluded that the Fees Order unnecessarily infringed upon this constitutional right. As a result, a quashing order was imposed by the Court, preventing the Tribunals from charging fees.
The future of judicial review
Whilst judicial review has evidently been an avenue for seeking justice when government regulations have infringed on individuals’ rights, the looming presence of the new Bill casts a bleak shadow on its future potency. For instance, the Bill makes an attempt to limit the effect of a quashing order as a judicial remedy. Part 1 Clause 1 of the Bill allows for a quashing order to be suspended, which would delay the effect of a ruling on a government decision or regulation as unlawful. During this suspension, the executive could pass an act through Parliament, making what was held to be unlawful lawful under primary legislation, so the judiciary would not be able to overturn the decision.
This brings into question the potential impact the Bill would have on outcomes in similar cases to the bedroom tax and employment tribunal fee cases. For instance, in the case of the employment tribunal Fee Order, the Bill would enable the government to take the Order to Parliament and pass an act during the quashing order suspension to make fees lawful again. This would undermine judicial review by invalidating its outcome.
This Clause also includes that a quashing order may be applied in future cases only. This ‘prospective-only’ provision further diminishes the remedial power of quashing orders, especially when a claimant that brings a case to judicial review cannot get the order applied to their particular case. Hence, if the Bill was a legislative act before the bedroom tax cases, and a prospective-only remedy was applied, at least 155 individuals would have been left with their grievances not redressed.
Ultimately, the move to limit the impact of judicial review reveals the government’s underlying strategy to avoid accountability at the expense of individuals potentially wronged by their decisions. Those who care about access to justice should oppose this Bill and argue for its repeal if it is passed.
For regular updates on the government’s plans to help public authorities evade accountability, you can sign up to Liberty’s campaign against the Judicial Review Bill and the scrapping of the Human Rights Act here. Another attack on accountability is the Police Crime Sentencing and Courts Bill, which undermines the right to protest – read more from us on the Bill and the Kill the Bill campaign that grew up to oppose it here.
Photo credit: Lotus Johnson, Flickr, 2010.