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Until the 1970s the relationship between the UK judiciary and the UK government was very different from what it has become. The judiciary was seen as a largely conservative body whose members came from the same social and political background as members of successive Conservative governments. The judiciary usually showed support for the power of the state in relation to its citizens. Judges were not expected to challenge the authority of government in any significant way. They saw themselves as servants of the state rather than an equal partner. This relationship has changed considerably for a number of reasons:
● The growth of judicial review since the 1960s (see Ridge v Baldwin (1964) and M v Home Office (1993) which extended the principle of natural justice to tribunals
● The rise of liberal ideology in the UK from the 1960s onwards, including the growth of what is sometimes known as the ‘rights culture’
● The appointment of a series of liberal-minded senior judges since the 1990s
● The passage of the Human Rights Act in 1998, giving judges a codified statement of human rights which could be used to protect citizens against state power. Also the Freedom of Information Act.
● The Constitutional Reform Act of 2005, which improved the independence of the judiciary in general
There are three main grounds for challenging a government decision by judicial review. In addition, the threat of judicial review can influence government action too.
1 Procedural unfairness: if the process by which a decision is made is considered to be improper. In July 2021 the Department for Work and Pensions (DWP) agreed to change its ‘unfair, unlawful and discriminatory’ pressuring of benefits claimants to drop tribunals. The DWP frequently engaged in the practice of making last-minute higher benefit offers to claimants (though still lower than a legal entitlement). The department finally agreed to change its practices the day before a judicial review into its activity was due to commence.
2 Unreasonableness or irrationality: while it is rare for the courts to grant judicial review on this basis, in July 2021 the education secretary’s refusal to revoke an order imposed on a primary school to become an academy was declared ‘irrational’ by the High Court after the school’s governors brought a judicial review of the decision. After considering the ‘clear evidence from the school and the local authority of both continued efforts to improve and success in achieving those improvements’ the court quashed the academy order, refused an application from the education secretary, Gavin Williamson, for permission to appeal and ordered him to pay the school costs of £75,000.
3 Illegality: (Ultra Vires) such as if a decision contravenes existing law. In March 2021 The Guardian reported that ‘the government will be in clear breach of the law and exposed to a judicial review’ through the abandonment of its commitment to spend 0.7% of national income on overseas aid. In the aftermath of the cuts, several charities, including the International Planned Parenthood Federation, notified the government of their intention to seek a judicial review after the Foreign Office told them it was terminating their project funding.
supreme court poster.pdfR. (Reilly) v Secretary of State for Work and Pensions (2016)
Reilly argued that, in requiring her to work for a private company in order to receive her benefit payments, the Department of Work and Pensions (DWP) had infringed the protection against slavery provided in Article 4 of the European Convention on Human Rights (ECHR). On appeal in 2013, the Supreme Court concluded that while the DWP had not infringed the ECHR in introducing ‘welfare to work’, the scheme was unlawful because the department had operated ultra vires, i.e. beyond the authority given to it by parliament. By then the government had already passed the Jobseekers (Back to Work Schemes) Act, which changed the law retrospectively so that no offence had been committed. In 2016, the Court of Appeal eventually ruled that changing the law retrospectively in this way was incompatible with Article 6 of the ECHR (which guarantees the right to a fair trial) but confirmed that it was up to the government and parliament to decide how to proceed in light of that declaration of incompatibility.
In this case the Court of Appeal ruled that the government department in question (the DWP) had not established slavery, which is prohibited under the ECHR, but had acted beyond the authority given to it by parliament under statute law.
R. (Tigere) v Secretary of State for Business, Innovation and Skills (2015)
Beaurish Tigere, who had arrived in the UK from Zambia aged 6 and subsequently completed her A-levels, was not eligible for a student loan for her undergraduate degree because she did not have indefinite leave to remain in the UK and would not be able to apply to the UK Border Agency for this until 2018. In 2015, the UK Supreme Court accepted her appeal on the grounds that the negative impact on the appellant’s rights under Article 2 of the ECHR (the right to education) and also Article 14 (prohibiting discrimination) could not be justified.
Case study: Common Law
Case study: Common Law
The Al Rawi case and secret hearings, 13 July 2011
The case was brought by former inmates of the US prison at Guantanamo Bay on Cuba, who claimed that the UK security services had contributed to their detention and mistreatment. The security chiefs, supported by the government, argued that in the interests of national security, they must be allowed to give evidence in secret. The Supreme Court rejected this argument on the grounds that it breached one of the principles of a fair trial. Each side must be able to see the evidence put before the judge.
Case Study: The Limits of the Human Rights Act
Case Study: The Limits of the Human Rights Act
The case of Private Jason Smith, 30 June 2010
Private Smith was a UK serviceman who died of heatstroke on campaign in Iraq in 2003. His family brought a case against the Ministry of Defence arguing that the authorities should have safeguarded him. The High Court ruled in their favour but when the case was appealed to the Supreme Court, this judgment was overruled by a majority of six to three.
The Supreme Court held that the jurisdiction of the Human Rights Act did not extend to troops in combat situations.
Case study EU Law
Case study EU Law
The HS2 rail link, 22 January 2014
Campaigners against the government’s planned London to BIrmingham high speed rail link requested a judicial review to investigate whether the project complied with EU environmental directives. The Supreme Court unanimously dismissed the appeal on the grounds that parliament had not yet reached a final decision on the scheme and so its merits remained open to debate.
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