How a limitation on judicial review would affect Christians

23 October 2020

The Christian Legal Centre’s Roger Kiska comments on why upholding the judicial review process is so important for Christian freedoms.

“The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government, or other public bodies. With the ever-increasing power of Government, which now commands almost half the country’s GDP, this function of calling the executive to account could not more important.”
Lord Neuberger, Tom Sargent Memorial Lecture (2013)

On 7 September, The Independent Review of Administrative Law (IRAL) panel, under the auspices of the Ministry of Justice, initiated a public call for evidence on the topic of  Does Judicial Review Strike the Right Balance Between Enabling Citizens to Challenge the Lawfulness of Government Action and Allowing the Executive and Local Authorities to Carry on the Business of Government? An expert panel, led by Lord Faulks QC, will consider options to reform and possibly narrow the existing judicial review regime and put forward their considerations to the Lord Chancellor and Secretary of State for Justice.

The Christian Legal Centre submitted its evidentiary memorandum this past week, highlighting the importance of a liberal approach to judicial review as a check on the power of government. In a culture that is increasingly hostile to Christian beliefs, including public actors and decision making bodies which can at times be largely illiterate towards genuine Biblical belief, judicial review is often the only refuge available to many Christians who have suffered a limitation of their rights.

Judicial review is frequently an avenue of last resort, when no other remedy provides a would-be litigant access to court. Moreover, one of the few provisions of the European Convention on Human Rights that the United Kingdom has neither ratified nor transposed into the domestic law vis-à-vis the Human Rights Act 1998 is Article 13’s right to an effective judicial remedy. This makes any limitation to judicial review an existential threat to citizens’ rights.

In 2019, there were 3,400 judicial review applications launched. Of these, 2,100 applications reached the permission stage with only 250 of those being found to be “totally without merit.” What these statistics evidence is that the vetting process for admitting a judicial review and hearing it on the merits is rigorous but efficient. The number of meritless claims that make it past the permission stage are fairly de minumus, with the majority of applications being found to have substantive merit. Of the small percentage of claims that actually make it to a full hearing and final judgment, statistics show that claimants win about 40% of their challenges.

While the Conservative party has vowed to end what it calls an abuse” of judicial review, the statistics certainly bare out that no such abuses are actually occurring. In reality, the called-for erosion of the right of access to court is more likely a reaction by government being fed up with the lawful and healthy exercise of democratic checks and balances by its citizenry.

In a nation where rule of law matters, Parliament passes laws for the betterment of the common good. Beyond that however, government bodies are also tasked with enforcing and regulating the law. Other public actors, like universities and Local Authorities, also make decisions which effect everyday rights and rights’ holders. If their decisions go beyond what Parliament has legislated, then their actions are ‘ultra vires’. It is these actions, not primary legislation, which are challengeable by judicial review.

Precisely stated, when a public body acts in a way which exceeds the authority bestowed upon them by primary legislation in a manner which is illegal, irrational or procedurally unfair, a citizen has a right of judicial remedy trough the judicial review procedure. Any curb on judicial review is in essence, a curb on the right of citizens to challenge governmental overreach.

In the case of Christian freedoms, access to judicial review is hugely important. Take for example the case of Felix Ngole. Felix was removed from his masters course in social work at the University of Sheffield for engaging in a Facebook debate unrelated to his studies and quoting Scripture in relation to homosexual behaviour and sin. The university argued that his comments were discriminatory and made him unfit to practise as a social worker. So dogmatic was the university in their position, that counsel for the university actually argued that Mother Theresa may be unfit to be a social worker in modern Britain and that speaking about your Biblical beliefs even in the confines of a Bible study should be enough to disqualify you from social work practice.

Felix, with the support of the Christian Legal Centre, challenged the University of Sheffield’s decision by judicial review. Eventually the Court of Appeal issued a watershed ruling finding that holding and expressing Biblical beliefs is not the same as discriminating against a service user. Felix had never acted in a discriminatory way towards a service user, nor was their any evidence that he would. Because of his judicial review, not only was Felix vindicated, but universities across the country are now tempered in their ability to create a bar to certain professions because of the Christian beliefs held by their students. If the government is speaking about these types of cases when they are wanting to limit access to judicial review, them Christians indeed have a great deal to be worried about.

In another instance, 25 Christian pastors, with the support of the Christian Legal Centre, threatened legal action against the Government in relation to the treatment of Christian churches in the coronavirus regulations. They did so by way of a pre-action letter dated 29 May arguing that churches provided essential services, that the restrictions were a violation of church autonomy and the nature of the restrictions were irrational and paternalistic rather than an exercise of constitutional principles. In this instance, the availability and threat of a judicial review played an important role in defending Christian freedoms.

The fact is that judicial review provides a balance of power between the citizen and the government. Without it, ordinary people are left without an effective remedy against government excesses. As a democratic society such a situation would be untenable and should be unwelcome to all freedom-loving people, the Lord Chancellor and Parliament included.

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