Will the Judicial Review Bill torpedo SEND claims or is it damp squib?

With Eduardo Reyes, Features Editor, The Law Society Gazette

Judicial review is the process of asking a court to look at the decision of a public body – such as a local authority – and to decide whether the decision was made in a lawful, fair, and reasonable way. Children and young people with SEND rely much more heavily on decisions made by public bodies than their peers who have no special educational needs. Judicial review is a vital route of redress when poor decisions are made, as they all too often are, about things like school places, delivery of a child or young person’s EHC plan, or home-to-school transport.

But government ministers aren’t happy. They think the courts are being used “to conduct politics by another means”, and that judicial reviews are causing “endless delays”. Local authorities are also upset, claiming SEND parents are “litigious”.

The Government published a Bill last week that sets out how the reforms they want to make. What might these reforms mean for children and young people with SEND and their families, and how worried should we be? Eduardo Reyes, a legal journalist at the Law Society Gazette and parent of a disabled teenager, explains.

The Judicial Review Bill and SEND by Eduardo Reyes, Law Society Gazette

Eduardo Reyes

My youngest daughter Amy, has Rett syndrome, a condition which, put simply, means her brain is incredibly bad at talking to her body. To say her needs are ‘high’ or ‘complex’ barely seems to cover the challenges that she, and we, face. 

It is good for me, I think, to have other things and other causes on my mind. But sometimes what I am looking at as a journalist writing on legal affairs overlaps with matters that affect Amy and other children who share her – our – struggles. 

The Government’s keenness to reform judicial review is one such area. 

What is judicial review? Democracy and the rule of law

In recent years there has been huge pressure on the UK’s constitution, and public debate has often pitched ‘democracy’ against ‘the rule of law’. Are the majority simply right in a democracy, or can courts and judges ‘get in the way’ and subvert the will of the people? 

Unpicking this in quieter moments is actually not that hard. A democracy is not just a place where majority votes prevail – to take part in it, there’s supposed to be a sort of ‘pay to play’, in that you must meet certain standards of probity in your conduct and decision-making. To guarantee that, the system needs some sort of independent oversight, which takes in a free press and the courts. 

That’s why judicial review has developed over the past 400 years. In judicial review, someone can ask a court to decide if the government or a public official followed a proper process to make a decision and if the decision was legal. 

The court might do a number of things – from saying a process was wrong, and needs to be rerun, or if the person asking the court, the complainant, is lucky the court might really go to town – in one Supreme Court case a friend was involved with, the judgment which went against the government invoked Magna Carta. 

The general point on its value to all comes in a quote given to the magazine I work for, the Law Society Gazette, where Dr Ronan Cormacain from the Bingham Centre for the Rule of Law said of its significance to peace and law in Northern Ireland: "JR is very good for Northern Ireland… it enforces compliance with the rule of law and holds politicians to their duties. Weakening accountability to the courts would be very bad."

In Special Educational Needs and Disability (SEND), judicial review (JR) can be threatened or used when a decision may have been wrong. A case needs to meet certain standards, but the threat is always there. 

‘Don’t like being told what to do’

You will all have noticed the ‘wars’ we’re having on divisive issues. Governments of all political hues dislike losing in court. When the Supreme Court judicially reviewed the UK government’s Brexit and prorogation of parliament decisions, it stung more than usual.

Neurotypical children who misbehave may be searching for boundaries that they are secretly pleased to have imposed on them – not so, apparently, this government. 

Convinced that there is a trend of judges being drawn into politics – over-reaching their remit – the current Lord Chancellor appointed a former Conservative justice minister, Lord Faulks QC, to head an Independent Review of Administrative Law (IRAL) (Admin law being another name for judicial review.) 

The IRAL had a short time to report. But it was a distinguished panel, and it didn’t exactly play ball. In fact, apart from a couple of minor recommendations for reform, the panel rather took it upon themselves to explain to the government that judicial review didn’t actually work as the government claimed it did. 

‘The bottom line,’ Tom Hickman QC told me, "is that the government raised a number of concerns about the operation of judicial review and asked the panel whether reform was needed; with minor exceptions, the response of the panel was an emphatic 'no' on every point… in part, it reads like a university tutorial to the government seeking to educate it on the role and importance of judicial review."

Ouch. Though if Robert Buckland as Lord Chancellor felt the pinch, it didn’t show – his response to the review was to pretend it supported the government’s case for making it much harder, or impossible, to review decisions by government and public sector bodies. The government likes the idea of ‘ouster clauses’ in legislation – whereby it could just put lines into law saying something like ‘and this can’t be judicially reviewed’. 

Think of JR as a sort of ‘backstop’ for SEND-related rights, and you start to get why all this is a worry for disabled children, their parents and carers. Not least, Conservative-led governments have a bit of previous here – when initially proposed, the 2014 reforms that brought in Education Health and Care plans sought to remove legal enforceability that the predecessor ‘statements of special educational needs’ had. Campaigners managed to mount a successful defence of the relevant sections’ enforceability.

The Judicial Review Bill – punches pulled?

The publication of the Judicial Review Bill should have been a day of triumph for, I’m afraid, (given the long history of Conservative lawyers in building our human rights architecture) Conservative thinktank initiatives like Policy Exchange’s ‘Judicial Power Project’. 

Buckland’s statements ahead of the Bill’s publication certainly had the bluster of his previous efforts, stressing notions that led the Law Society’s president I. Stephanie Boyce to say: "There is a great deal here that should ring alarm bells for people who come up against the might of the state. The [Ministry of Justice] suggests the Bill may set a precedent for government to give itself the power to remove certain types of cases from the scope of judicial review."

That is certainly what the government would like to do. Parents and carers of disabled children are well used to insidious attempts to steer them away from asserting rights. We are told that because reference to the courts is stressful, it would be better if we didn’t use them. So why not limit our ability to do so? 

But that is not where the Judicial Review Bill puts us. 

Buckland originally wanted the Bill to severely limit judges’ ability to reverse a decision – the sort of ‘remedy’ we, when bringing a case, might expect (what’s described as ‘quashing’). 

That has been severely watered down – judges instead may have a bit of discretion and decide the best remedy is a change of behaviour in the future, showing the public body had learned from an adverse judgment (more of that below). But the worst fears here have not materialised, although immigration lawyers are poring over the meaning of limits to some immigration appeals. 

What are the implications for SEND?

I asked high-profile public law expert Polly Sweeney, partner at Rook Irwin Sweeney, for her assessment for SNJ. "It is fair to say many of us were expecting this Bill to be far more harmful to Judicial Review," Polly replies. "Whether that is because the Government has finally realised the Administrative Court did not actually need reform, or whether, as Buckland chillingly said recently, 'Judges have become more restrained' remains to be seen."

Problem over? 

Well, not quite. Certainly, what happens next needs to be carefully watched. 

Polly focuses on the ‘quashing’. "These powers could be used in any Judicial Review case, including cases relating to special educational needs, access to healthcare, social care or welfare benefits," she notes. "Whilst the Government says these are simply additional 'tools' for judges, the way the Bill has been drafted does not leave the judge with full discretion on whether to use these powers." 

Instead, she says: "The bill creates a presumption that the court must use these new powers in certain circumstances. There are 'conditions' which Judges must consider including the 'interests or expectations' of people who would benefit from the decision to be quashed and whether there would be any ‘detriment’ to good administration if the power was/was not exercised. The extent to which claimants may be left with an inadequate remedy will to a large extent depend on how the courts apply these conditions in practice."

Still, that change is very far from the government’s manifesto pledge on judicial review. 

Bigger concerns afoot

I had a rare social outing last week, meeting some barrister contacts at an outdoor social event. The feeling of those with a close interest in JR was that the Bill largely takes forward the IRAL’s moderate proposals for reform and little more. At one level, the government’s love of bluster – misleading messages on the contents of the tin – favours the rule of law, and the substance of existing administrative law. 

For an administration that likes to show quick results, unpicking 400 years of JR was, perhaps, off-putting. Buckland offers no evidence of ‘judicial restraint’ in response to government pressure, because there is no such evidence. On this occasion, it appears to be a face-saving construction. 

Yet, the government has left the door open for further reform, judged by its statements. Also, keep an eye on how it might be amended as it progresses through parliament – the Bill is not the finished Act. 

A bigger concern for SEND children, parents and carers must surely be that government will revisit the coalition government’s thwarted attempt to remove the legal force contained in EHC plans.

The flaw in JR’s critics’ arguments against the process has always been that its scope is not as wide as high profile government defeats – like the Brexit and prorogation cases – make it appear. But if the law and legal rights are changed, for example on the enforceability of EHC plans, JR will become a less powerful remedy for us. 

Eduardo Reyes, Features Editor, Law Society Gazette

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