Some commentators have suggested the rule of law is becoming the rule of the judges; that judicial review has gone too far and government should be allowed to govern. In this short article, Govan Law Centre’s Mike Dailly argues that judicial review is an essential safety net at the heart of democracy in Scotland and the UK.
I would contend that the rule of law as we now understand it is a modern construct, as we didn’t have equality before the law until relatively recently. Just over 100 years ago, the 1918 Representation of the People Act extended the vote to all men over the age of 21 and women over the age 30 who met certain property qualifications.
Full adult suffrage for women didn’t happen until 1928 – just 95 years ago.[1] When we think back to the virtues of Roman law in the Republic from 509 to 27 BC, the laws which applied depended upon your class of citizenship.[2] The Roman rule of law declined with the onset of the Empire and the placing of autocratic power in the hands of the emperor.
Today, we might define the rule of law as a “principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated”.[3]
If no-one is above the law, how do we enforce that principle without the remedy of judicial review? Someone has to do it and I would argue that our independent judiciary are the best placed for that difficult task. The reason why judicial review has become more contentious in recent years is because people challenged the exercise of prerogative powers by the Prime Minister – with the Government losing a slew of high-profile cases.
We need to go back to the case of Miller.[4] In January 2017, the Supreme Court considered a judicial review case that claimed the Government needed an Act of Parliament before it could give formal notice of the UK’s decision to withdraw from the European Union. The Court held that an Act of Parliament was indeed required to allow ministers to give this notice. One might suggest that outcome was very good for parliamentary governance and democracy.
In 2018, we had the Scottish case of Wightman and others[5]. A group of MPs, MSPs and MEPs brought a petition for judicial review in the Court of Session, seeking a declarator that specified whether a notice to leave the EU under article 50 of the Treaty on European Union could be unilaterally revoked. The Inner House agreed to refer the case to the EU Court of Justice for a preliminary ruling on the issue; that Court held that the UK was free to unilaterally revoke its article 50 withdrawal of the EU.
Lord Drummond Young said that the declarator sought in Wightman and others fell “squarely within the fundamental purpose of the supervisory jurisdiction”[6]. That “fundamental purpose” was to ensure that acts of government were carried out within the rule of law.
The Inner House would have no hesitation in rejecting arguments based upon “the detailed scope of previous descriptions of the supervisory jurisdiction, if they appear to stand in the way of the proper enforcement of the rule of law”.[7]
In 2019, we then had the Scottish and English cases of Cherry and Miller[8] The UK Supreme Court was asked to consider the lawfulness of the proroguing of Parliament in September 2019. The Court held that Parliament’s suspension had been unlawful. The Court said that the prorogation had the effect of frustrating or preventing Parliament carrying out its role without reasonable justification.
The response of the then Government to this was to consider curtailing the scope of judicial review with the launch of the Independent Review of Administrative Law (IRAL).[9] After a full consultation, IRAL recommended no, or very little change to judicial review.[10] IRAL did not support, for instance, the codification of judicial review, and it opposed any move further to restrict the rules on standing or further tightening time limits for doing so. The technical reforms that were recommended – mostly in England and Wales – were enacted by the 2022 Judicial Review and Courts Act.[11]
Given the scope of the 2022 Act, one might conclude that the UK Parliament and Government have accepted that judicial review has not went too far and is an essential feature of our democracy and rule of law.
In 2015, Lord Dyson, a former Supreme Court justice and Master of the Rolls in England and Wales gave a speech entitled: “Is judicial review a threat to democracy?”[12] He referred back to the 1980’s case of the Council of Civil Service Unions v Minister for the Civil Service.[13]
The then Conservative government led by Margaret Thatcher, had ruled that employees of the GCHQ were prohibited from joining any trade union. This decision was justified on the potential threat to national security, and enforced using an Order of Council which is an exercise of the Royal Prerogative Power.
Lord Diplock found that where a person’s “private rights or legitimate expectations” are effected by the execution of the prerogative power, then that execution of power should be amenable to review. Lord Roskill said: “If the executive instead of acting under a statutory power acts under a prerogative power and in particular a prerogative power delegated to the respondent … so as to affect the rights of the citizen, I am unable to see … that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.”
“At a time of post truth politics; a time where some elected members and public bodies act as if they are above the law, the remedy of judicial review is an essential safety net for the health and wellbeing of democracy and the rights of the individual against the state”.
Mike Dailly, Solicitor Advocate, Govan Law Centre
For Lord Dyson, ensuring that government and public bodies acted in accordance with the rule of law was an essential feature of our democracy: “Since these obligations are the result of the democratic process, their enforcement is an essential handmaiden to democracy itself. It is the very antithesis of something that undermines or constitutes a threat to democracy. It is true that the interpretation of statutes is undertaken by judges and, as we are frequently reminded, judges in the UK at any rate are not elected by the people and are not accountable to Parliament. But that should not be a cause for concern, since the aim of the interpretative process undertaken by the judges is to ascertain and give effect to the will of Parliament”.
He went on to observe that: “The boundaries of this judicial self-restraint are not the product of legislation. They have been gradually worked out by the judges themselves through case-law in the way that the common law typically develops. As Lord Bingham put it in A v Secretary of State for the Home Department [2005] 2 AC 68 at para 29: “…. Great weight should be given to the Home Secretary, his colleagues and Parliament on this question, because they were called upon to exercise a pre-eminently political judgment … The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision”.
At a time of post truth politics; a time where some elected members and public bodies act as if they are above the law, the remedy of judicial review is an essential safety net for the health and wellbeing of democracy and the rights of the individual against the state.
- This article is based upon an opening speech given by the author at the Edinburgh New Club’s Debating Society on 19 November 2024.
[1] The Representation of the People (Equal Franchise) Act 1928
[2] https://academic.oup.com/edited-volume/28073/chapter-abstract/212127561?redirectedFrom=fulltext
[3] https://www.scottishhumanrights.com/blog/why-legality-and-the-rule-of-law-are-essential-for-a-rights-based-scotland/#:~:text=Human%20rights%20and%20the
[4] Miller and another v Secretary of State for Exiting the European Union [2017] UKSC 5
[5] Wightman v Secretary of State for Exiting the European Union 2019 SC 111
[6] Para 68
[7] Para 67
[8] R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41
[9] https://lordslibrary.parliament.uk/judicial-review-time-for-change/
[10] https://commonslibrary.parliament.uk/judicial-review-reform/
[11] https://www.legislation.gov.uk/ukpga/2022/35/contents/enacted
[12] https://www.judiciary.uk/wp-content/uploads/2015/12/is-judicial-review-a-threat-to-democracy-mr.pdf
[13] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
