Following minister John Healey's suggestion that councils should reconsider their use of judicial reviews, Andrew Arden argues it is a cornerstone of British democracy Local government minister, John Healey, has recently criticised the use of judicial review by local authorities against central government (‘"Costly" judicial reviews hit policies, says Healey', The MJ, 2 April). He suggested councils were ‘using the law to overturn government laws already passed through Parliament', ‘as a substitute for proper engagement in policy, for political point-scoring, or as a device to delay proper decision-making', and ‘in many instances, the case is not sound or it's a legal try-on to derail policy decisions because the challenging party disputes the policy intent'. Mr Healey is reported as saying, ‘With finances getting tighter for everyone, I ask whether we can justify spending taxpayers' money on one part of government taking another part of government to court,' imputing to local government an equality of status that is singularly lacking in most of its dealings with central government. Rather, what the criticism reflects is the view – based on money, not law – that local government is no more than an agent of central government, and is acting improperly when it challenges the wishes of its principal. Although the minister says he is ‘not questioning the legitimacy of judicial review', he is, in practice, seeking immunity from review. No-one judicially reviews actions with which they agree. Nor are local authorities able to use the courts to challenge policy. The theory of judicial review is that if public bodies follow a correct process of decision-making, they will reach decisions which are within the ambit of the power conferred on them by Parliament. And that is why Acts of Parliament usually direct how decisions are to be reached. Consider the restructuring cases which have caused the minister the most offence. The first of The MJ articles (see right) appears to suggest none of those which have reached the courts was successful. That is not right, In the most recent cases, Breckland and East Devon, the authorities were successful in establishing that the Boundary Committee had (a) been wrong to decide it could only consult on one draft alternative proposal, (b) failed to consult the public on the affordability of proposals, and (c) taken an entirely-wrong approach to the aggregation of costs and savings – where a restructuring proposal comprised more than one new authority. Along the way, the government – and the Boundary Committee – lost their arguments that the cases could not proceed because they were premature or, in the alternative, because of delay. It is Parliament which defines government powers. It is Parliament which required consultation with ‘persons interested' in the re-organisation. The policy is clear that the Boundary Committee should not be able to put forward – nor the secretary of state to accept – a proposal on the essentials of which the public had not been given the opportunity to comment. To raise the failure to conform to Parliament's requirements is not a ‘try-on' or an inappropriate policy dispute, but to demand that the Government adheres to the requirements set by Parliament. Nor was the Shrewsbury and Congleton challenge pointless. What the Court of Appeal held, in substance, was that the Government did not have power to conduct the process of inviting and consulting on proposals for restructuring before passage of the Local Government and Public Involvement in Health Act 2007. The Government lost its claim to have been able to do it pursuant to common law powers of the Crown – or royal prerogative – and only succeeded because, between High Court and Court of Appeal, the 2007 Act had come into force, the pre-Act process had been retrospectively validated by its Section 21, and the secretary of state had re-taken the relevant decisions once she had the power to do so. Nor was that the only criticism of the Government. Lord Justice Carnwath recorded statements to Parliament by ministers on the subject of public support which were inconsistent with the criteria applied by the secretary of state. Public law develops incrementally, issue by issue, as a means of controlling abuse of power, of which want of authority to engage in an activity is a classic example. Those challenges may not have succeeded, but they laid down a marker on government powers for the future – no insignificant achievement. Whether or not correctly, there are many who see this as a Government which neither welcomes criticism nor respects the authority of the law over its administration. It seems to have forgotten that our system of government contains three arms – executive, legislative and judicial – none of which is superior to the others, the latter of which exists, in its constitutional role, for the very purpose of ensuring that the former goes no further than Parliament has allowed it to. Mr Healey may not think this role is worth the cost. I cannot think of any amount too great to preserve it. Andrew Arden is a leading QC. He appeared in both the cases referred to.
