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27th July 2018

BREXIT – An increased role for Judicial Review

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A collateral effect of the European Union (Withdrawal) Act 2018 (which received royal assent on 26 June 2018) is that the process of Judicial Review in the English Courts could end up playing a far bigger role on the legal stage than it has ever done before. Judicial review is a process by which a Judge is asked to review the lawfulness of an act or decision of a public body. The Court is not deciding whether the body concerned has reached the right decision, but whether it went about its decision making in the way it should have done according to law. Centrally, it is a way in which a person – a citizen - can challenge the exercise of power and hold authority to account. One thing the 2018 Act, does is to paint an entirely new landscape from which such challenges can emerge.

The Act broadly does four things: firstly, it repeals the European Communities Act 1972 by which European Law was made English Law; secondly, it provides that UK law derived from the UK’s membership of the EU as it applies on ‘exit day’ (defined by the Act as 29 March 2019 – although, that may need to be looked at again!) will be retained; thirdly, it explains how that retained law should be regarded after exit day; and fourthly, it explains what regard the Courts should have for European Law after exit day, essentially expressing the quality of freedom which English Law makers and the Courts will have in that post EU world the UK will be occupying.

One of the major constitutional controversies arising from the process of extraction of the UK from the EU and the 2018 Act, is that the monumental law making process that flows from it will require an unprecedented delegation of law making authority by Parliament to the executive and administration, with government ministries given the job of introducing regulations to make retained EU law operate effectively and fill in gaps in legislation in the post Brexit world. The fear has been that a want of full Parliamentary scrutiny of important areas of law making (that would otherwise be the province of primary legislation), will create a substantial democratic deficit. Ironically, this is the same charge levelled at EU law making by those who advocated for ‘leave’.

Aside from wider constitutional implications for our representative parliamentary democracy, the wholesale delegation of law making offers up the prospect of a wave of challenges through the Courts. This is because as a matter of principle delegated, subordinate legislation is capable of being judicially reviewed in a way that primary legislation is not and because those to whom law making is delegated will have a lot to do under considerable pressure of time. Not the best recipe for high quality law making.

So, here is a prediction: that in the next couple of years we will be asked by a client or two in one sector or another to consider the availability of Judicial Review for the odd dubious decision on how gaps in regulation have been filled. We shall see.

Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic on 01604 233233 or click here to email Dominic.