light coloured stone ceiling and stained glass windows

FAQ: What’s a judicial review and why does it matter?

This FAQ by Tammy Orr discusses why judicial review is important to CAAT, and why it is important that organisations can bring a judicial review in the UK.

Following our successful legal case against arms sales to Saudi Arabia, CAAT recently joined a host of NGOs and campaigning groups in signing this statement by humanrightsact.org.uk:

Judicial review is an indispensable mechanism for individuals to assert those rights and freedoms against the power of the state.

This FAQ will discuss why judicial review is important to CAAT, and why it is important that not just individuals but also organisations can bring a judicial review.

What is judicial review?
Who can get a judicial review?
Why is CAAT concerned about standing?
What is happening now?
Are judicial reviews political?
But the government says they’re political?
Is something wrong here?
Who will be impacted?
What should the government do?
More reading

What is judicial review?

Judicial review is a crucial legal process in many democracies, including the UK. It allows people to challenge decisions made unlawfully by the state. Where the court finds an unlawful decision was made, the court can apply a remedy. Usually it orders the state body to make the decision again, but this time lawfully.

Photo of glass and steel building with bollards

Home Office: In recent years, due to hostile environment policies, this department has attracted the majority of judicial reviews.

Judicial review helps to prevent the state from doing whatever it likes. It helps to keep the state’s power from being absolute, and ensures that it acts with fairness, justice, and rationality. Judicial review holds the state to its own rules, and provides a path for wrongs to be righted. These are vital characteristics of a healthy democracy.

Without this important check, the state would be a very big bully. The decisions of regulatory bodies, councils, welfare decision-makers, and immigration authorities could not be challenged. Bureaucrats who don’t like a person or group could simply use state power to punish them in a variety of ways, with no fear of recourse.

When there is no recourse, rules that are meant to bind the state become meaningless.

Who can get a judicial review?

If you have ‘standing’, you can ask the court for a judicial review. To have standing, you must be a person or group with sufficient interest. Sometimes people who bring judicial reviews are organisations, due to their expert knowledge.

gothic white stone building with crowd and cars

When the government broke its rules, CAAT went to the UK Royal Courts of Justice to sort it out.

Judicial reviews brought by organisations tend to concern the most widespread and damaging state abuses of power. For example, organisations have won judicial reviews about serious environmental pollution issues, as well as widespread abuse of vulnerable people by the state.

When you ask for a judicial review, you must show you have standing. Without standing, the court cannot listen to you about law-breaking–even if you’re right!

When the government was not following its own arms export rules regarding sales to Saudi Arabia for the ongoing war in Yemen, CAAT had standing to bring a judicial review. CAAT could do this as we obviously have a genuine concern and expertise when it comes to UK arms exports.

Why is CAAT concerned about standing?

Coffee carafe with filter

In theory, only the good stuff gets through the filters. But is state abuse of power really so similar to coffee?

Standing is one of several areas where judicial reviews can be ‘filtered’ from being heard by the court, through the administrative rules. High costs and short time limits also act as ‘filters’ in England and Wales. These ‘filters’ have been tightened several times recently. The number of judicial reviews that take place each year is falling.

When filters are tightened, the government usually argues that this helps prevent meritless applications for judicial review, and protects the taxpayer from costs.

The danger of tightening filters too much is that it makes it easier for the state to break some categories of rules, because the check on its power is gone. Healthy democracies do not set aside rules without process.

The government sometimes threatens to tighten the rules so organisations cannot have standing. If they succeed, it would effectively set aside arms control rules along with several other categories. This is because in these areas, only organisations are likely to ever have the standing to bring a case in the first place.

What is happening now?

Media gather outside the Supreme Court ahead of yet another verdict against the government in September 2019.

The government is conducting a review of judicial review. The description of the review claims  that the purpose is to preserve judicial review whilst ensuring “that it is not abused to conduct politics by another means or to create needless delays.”

The government suffered several major, embarrassing defeats in judicial review cases in recent  years. CAAT’s case was one of these. The review is widely believed to be a backlash.

Are judicial reviews political?

'NO' in white paint on pavement

Nope. Sigh.

People cannot bring judicial reviews for political reasons. The court would not hear them.

People bring judicial reviews because they think the state made a decision unlawfully, and those people are concerned experts who want a remedy. The court hears these.

But the government says they’re political?

Lord Sumption in black jacket and pink tie

Lord Sumption

Lord Sumption, a former Supreme Court justice, says the government doesn’t seem to understand the problem it is trying to address. As a law student, for what it’s worth, I agree.

Concerned experts often do have politics, and this is where the government is confused. Every democratic state does things that some people don’t like. When the issue is serious, like the arms trade is, concerned experts band together and work to change matters. Concerned experts know the rules on their issue. If the rules are being broken, they’re going to notice. Maybe they’re even going to do something about it. That’s what CAAT did. It’s what everyone would do, if only they could.

Is something wrong here?

Yes. Leading law firms and lawyers have criticised the composition of the panel, the structure of the review, and the unnecessary threat it poses to the democratic balance of power.

Who will be impacted?

When judicial review is weakened, the state’s power grows in relation to its people. This particularly affects the most vulnerable people in society, who rely on help from the state and often cannot afford to bring claims in court. Some examples are pensioners, children, people with serious disabilities, and minorities.

What should the government do?

Screenshot of government guidance on export controls for military goods, software and technology

Pro tip for democratic government: Follow your rules and your court won’t bother you.

If the UK wishes to retain a healthy democracy, the best way forward is for the government to stop lashing out in this dangerous and short-sighted way, and instead choose to learn from recent mistakes by following its own rules. If it doesn’t like those rules, then instead of breaking them, it should use existing, legitimate processes to change them (paywall). If it doesn’t break rules, experts like CAAT won’t need to alert the court; nobody gets embarrassed; and other awful consequences of rule-breaking stop repeating.

For example, the government has the power to change its arms export rules whenever it likes. Instead it broke them for years, and it lost in court against CAAT. Now it’s going for a repeat.

Instead of attempting to defend its irrational export decisions again, it should stop arming the Saudi coalition. End the world’s worst humanitarian crisis.

More reading

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