Legal Update: Judicial review: a vital safeguard

Legal challenges made in the courts against public bodies are central to the rule of law. Judicial review provides people with one of the most important means they have to challenge abuses of power by the state. As the government’s own consultation paper states, “judicial review is a critical check on the power of the state, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful”. The threat of judicial review can also act to incentivise good decision making.

For children, it is fundamentally important to have accessible mechanisms for challenging unlawful acts or omissions by public bodies. Judicial review can be vital in realising the rights and ensuring the lawful treatment of an individual child by the state, and issues at stake in a judicial review can also have implications for the way central government, local government or any public authority treats children more generally. For example, earlier this year Coram Children’s Legal Centre was involved in a challenge to the lawfulness of a policy that denied 17-year-olds independent adult assistance in police stations despite the fact that at 17 you are still a child. The court held that the policy was unlawful and the case has resulted in this policy being corrected. This and other such cases show that any reforms to judicial review must take full account of the potential impact on children, on children’s access to justice and on a child’s opportunity to be heard in administrative and judicial proceedings affecting them.

Why reform?

The government has said that its proposed reforms to judicial review are intended to act as a disincentive to those considering judicial review whose cases have no merit. But the proposals raise serious concerns because they will have a significant impact on cases that are strong and do have merit. Existing procedures are already available to identify weak cases, including the merits test for legal aid where the claimant is publicly funded (both the lawyer’s assessment and the Legal Aid Agency’s decision to grant funding) and the court’s permission filter (its initial decision on whether a case can proceed further). The Ministry of Justice has not provided adequate evidence that there is a problem to be fixed.

The government has suggested in particular that there is an issue with cases being brought by a person or organisation who has little or no direct interest in the matter. The government is proposing to change the test for who can bring a judicial review, known as “standing”, so that a direct interest will be required. The changes that are proposed would stop non-governmental organisations, charities and faith organisations from bringing challenges where the government acts unlawfully. This would negatively affect organisations that seek to protect children’s rights and welfare by bringing issues to court where individual children would be unable to articulate their rights or access the courts themselves.

The government should not seek to insulate itself from the accountability that judicial review brings, including judicial reviews by those who are not directly affected. Judicial review enables matters to be brought before the courts and ensure decision makers can be called to account.

Legal aid

The government is also proposing changes that would make lawyers less willing to take on judicial review cases where the individual could not afford to pay and was relying on legal aid. The proposed reforms would make judicial review financially risky for legal aid providers, creating a situation where children and young people with strong cases will not be able to find someone willing to assist them to bring their challenge.

Judicial review is a vital remedy for children across all areas of law, and the proposals risk children being denied their right in law to challenge unlawful decisions, including decisions of considerable importance that have safeguarding implications for very vulnerable children and young people.