Government should “look inwards” before restricting judicial review

Whitehall: Policy officials should engage with lawyers from early on

The government should “look inwards”, and officials develop a “more constructive relationship with lawyers and the law” before restricting the scope of judicial review, a leading think tank has argued.

The Institute for Government (IfG) said in a report that policy makers should recognise that “lawful decisions are likely to be better ones”.

The Ministry of Justice (MoJ) launched a consultation on judicial review last month, going further in its proposed changes than the recommendations of an independent panel of experts chaired by former justice minister Lord Faulks QC.

The IfG said that if the government could “muster a majority for change in Parliament”, then it was entitled to legislate for reform on JR.

However, that would come with “obvious constitutional risks”, reducing the ability of citizens to challenge “coercive state power”. The government “should therefore look inwards as well”.

The IfG said improvements could be made to internal processes, by ensuring that lawyers were “brought in at the right time, that policy officials use their advice in the right way, and that the policy profession is properly trained in how to commission, interrogate and understand legal advice”.

The think thank also called for “cultural” improvements in its report, based on interviews with government lawyers, civil servants, former ministers and special advisers. “Policy makers should recognise that lawful decisions are likely to be better ones.

“They should also recognise that the best way to protect a decision from judicial review is to get a proper democratic mandate for it in Parliament or, failing that, to follow a fair and robust policy process.”

The IfG recommended that policy officials “engage lawyers as soon as they have set their objectives and identified the options”.

If lawyers were not consulted soon enough, “they have to give a view on the legal risk and they are less able to propose alternatives”, meaning that “in the worst-case scenario, they ‘have to walk the policy backwards’.”

The IfG said policy makers and lawyers should “avoid eliding policy advice with legal advice”.

When the line between legal advice and policy advice was blurred, ministers and special advisers could be given the impression, as former chief adviser to the prime minister Dominic Cummings put it, that policy officials are “using the risk of losing a judicial review to delay or block policies”.

Officials admitted that legal advice can reinforce scepticism among their colleagues about policies they already feel are flawed. “But if that happens without policy officials thinking through how to surmount the obstacles, ministers are understandably frustrated.”

The IfG said “policy makers and lawyers should be taught how to speak each other’s language” through improved training.

“Better induction and training would also help to address the cultural problem that civil servants and ministers are inclined to view the law as an obstacle to policy making rather than a toolkit with which to make good policy.

“As one government lawyer argued, for policy officials, understanding the law should be ‘as important as understanding economics or stats. So often the lawyers are not embedded, whereas economists are embedded’. The message that needs to go out is: ‘Don’t be afraid of the law.’”

The IfG said government “should improve its communication of legal risk appetite, particularly between departments and the centre of government”.

The think tank said it was “ultimately ministers who are responsible for a government’s attitude to legal risk”, yet “different ministers and departments, with their different personalities and incentives”, were bound to have different risk appetites.

“Those differences need to be communicated effectively if departments are to avoid last-minute blow-ups in policy.”

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