The government has launched an investigation into judicial reviews to see if the process needs reforming. The Ministry of Justice says it is part of a plan to try to strike the right balance between citizen’s rights and effective governance.

Judicial reviews are used to look at the legality of a decision, action or failure to act by a government body while exercising its functions. A review decides whether laws have been correctly applied and the right processes followed during the life of a case.

Judicial Review can be used in family cases, and typically involves decisions made by Child Services Departments in local authorities.

A review of the process comes after the current government was defeated twice in the Administrative Court, on matters relating to Brexit (Article 50 and the prorogation of Parliament).

Those who argue in favour of restricting judicial review say there is evidence of the judicial review process being exploited to overturn ministerial decisions. Those against adjusting the balance to make it harder to apply for a review say the process is a vital part of the system which ensures legal scrutiny of government decisions.

The investigation will be chaired by Lord Edward Faulks QC, and five additional panel members, none of whom specialise in family law matters.

Any recommendations made during the investigation will be considered by the Minister for the Cabinet Office, Michael Gove.

The investigation will consider whether to write the terms of a judicial review into law.

Of significance is the investigation’s remit to consider public law control of all UK wide and England & Wales powers that are subject to it whether they are statutory, non-statutory, or prerogative powers.

This could lead to a tightening of Judicial Review, which could ultimately prevent specific types of claims from being heard in the Administrative Court. While the investigation appears to be geared towards an analysis of how the process is being politicised, it remains unclear how the probe and any future recommendations might affect family law cases.

The Ministry of Justice’s press release lists the considerations of the investigation as follows:

  • Whether the terms of Judicial Review should be written into law
  • Whether certain executive decisions should be decided on by judges
  • Which grounds and remedies should be available in claims brought against the government
  • Any further procedural reforms to Judicial Review, such as timings and the appeal process

We recommend reading the terms of reference and the notes under the terms for a clear picture of what the investigation will explore, as some of the terms are potentially controversial.

The press release says the panel will report back later on in the year, though it’s not clear from the statement whether a public report will be produced or whether the panel will be reporting back to a government body or Minister to update them on their progress.

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