Judicial review after BREXIT

  • Judicial review
  • The impact of BREXIT on the bringing of judicial review proceedings in the Administrative Court
  • Human rights law after BREXIT

Judicial Review

Judicial review is a procedure by which the High Court reviews the lawfulness of decisions made by public bodies, such as the departments of state, local authorities, and NHS bodies.

For more information please visit the Court of Protection and Judicial Review Proceedings page at www.ihtbar.com: http://newsite.carlislam.co.uk/mental-capacity-law-practice#Judicialreview

Although the three classic grounds for judicial review are:

(i)      illegality;

(ii)     irrationality (Wednesbury unreasonableness); and

(iii)    procedural impropriety,

the underlying principles are complex, multi-faceted, and continually being refined and developed by the judiciary, and include the setting aside of decisions which were ‘manifestly unjust, partial, made in bad faith or so gratuitous or oppressive that no reasonable person could think them justified.’ Kruse v Johnson [1898] 2 QB 91.

Judicial review involves scrutiny by the court of the decision-making process underlying a decision made by a public body which may be unlawful by reason of:

(i)     a breach of statutory duty;

(ii)    failure to consider relevant factors;

(iii)   consideration of irrelevant factors;

(iv)   an irrational act (i.e. the making of a decision which is absurd); and

(v)    fettering of discretion (i.e. the application of a policy so rigidly as to preclude the making of exceptions).

Permission is required from a judge to bring a judicial review case.

The impact of BREXIT on the bringing of judicial review proceedings in the Administrative Court

‘The Government has estimated that between 800 and 1000 secondary legislative measures will be required to implement the objectives of the Bill, and this figure is subject to change depending on the outcome of withdrawal negotiations and policy changes. 

… conventional challenges may be envisaged as arising from the vast mass of secondary legislation which will be needed to tear the patchwork fabric of EU law apart from our domestic law, and stitch it back as part of the domestic cloth. Quite how and where these issues will arise cannot sensibly be predicted at a stage when the final form of the necessary primary legislation has not yet emerged, and is being vigorously debated. Self-evidently, still less do we know what the mass of secondary legislation will look like. It currently remains to be seen what, if any, trade agreement will be negotiated; how the problem of the Irish border will be addressed; and how the devolution issues raised by Brexit will be accommodated. 

[It is clear that]:

  • First, there will be a vast mass of secondary legislation associated with our withdrawal from the EU.
  • Secondly, the opportunity for scrutiny of such delegated legislation will be extremely limited, both as a result of its sheer volume, and also because in practice (even in the best of times) such regulations receive relatively little parliamentary scrutiny, whether subject to affirmative or negative parliamentary approval.
  • Thirdly, at least a proportion of this legislation will involve potentially controversial policy issues, not simply mechanistic or anodyne amendments.
  • Fourthly, there will be real issues in determining the status and interpretation of an entirely novel category of law: retained EU law.
  • And finally, much of the legislation will be made pursuant to Henry VIII clauses which courts have been inclined to interpret strictly.

A wave of post-Brexit legislation may therefore readily be predicted. Legal uncertainty is a fertile breeding ground for litigation, and on any view the legal landscape after Brexit is an uncertain one… 

The impending surge in demands upon the court system in general, and the Administrative Court in particular, raises serious questions as to the capacity of the courts to cope. The system is already under severe strain.  On 2 November 2017 the Law Society suggested that a ‘no deal’ Brexit “could create a wave of litigation causing gridlock to UK courts”. But that spectre is plainly not limited to the ‘no deal’ situation, and is liable to arise in any event. This arises against the backdrop of the problem with recruitment to the judiciary in recent years, particularly acutely to the High Court Bench, to which no effective solution has yet been advanced. Already the Administrative Court is heavily dependent upon input from deputies, as review of the court list for any day will confirm. The Ministry of Justice is continuing to be subject to the most severe cuts: on 20 November 2017, justice minister Dominic Raab confirmed that the MoJ will have suffered a cumulative 40% cut in real terms in the fiscal decade ending in 2020. There is no sign of any plans being made to enable the judiciary and the Courts system to deal with the eminently predictable Brexit-related demands that will be placed upon them. It is hard to imagine even Sir Humphrey chuckling now.’ The EU Withdrawal Bill and Judicial Review: Are we ready? by Angus McCullough, Barrister, 1 Crown Office Row.

Human rights law after BREXIT

This begs a further question, namely, whether a remedy is available in judicial review proceedings when following BREXIT a decision potentially engages consideration of whether interference with a fundamental human right is justifiable?

In other words, after BREXIT, what human rights will be recognised and upheld by the courts as being sovereign under English law?

The practical consequences for business are potentially decades of ongoing uncertainty whilst industry bodies which have locus standii and deep pockets, bring JR proceeding, with leave, and within the limitation period, to test and determine the precise meaning and scope of any item of post-BREXIT legislation which affects the conduct of business and trade by its members. The actual legal consequences are unknown, and probably cannot be evaluated unless and until an impact assessment has been carried out in relation to each item of new legislation, which as part of the parliamentary process should be preceded by consultation and debate in both Houses of Parliament. Given the scale of the legislative exercise it is possible that this period of uncertainty could exceed 50 years. Is this understood by MP’s and voters?





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