Judicial review is essential to the operation of a modern democracy, by providing a check on the legality of government decision-making, and any restriction of its scope should be resisted, according to the Faculty of Advocates.

Faculty pressed the message in its evidence to the Independent Review of Administrative Law (IRAL), led by Lord Faulks, who has been tasked by the UK Government with considering whether the principles on which judicial review can be brought should be codified in statute, and whether there should be any limits placed on its scope, on who can bring claims and on the remedies available, among other matters.

In its response Faculty describes as "chilling" any suggestion that some decisions could be made immune from examination by judges.

"There is no serious basis in a modern democracy for the view that public bodies and government authorities are entitled to operate without accountability for material mistakes of law or fact in their actions (or inactions). Such a consideration betrays a misunderstanding of the rule of law and runs contrary to the fundamental principles of democracy", it states.

"The importance of the rule of law should be self-evident: a system of democratic government that pays proper respect to the rights of the individuals present within its territorial jurisdiction must be based on a system of rules, and those rules must be properly interpreted and consistently applied."

Quoting the words of Lord Drummond Young in last year's prorogation case, it adds: "Otherwise, government is liable to descend into tyranny or anarchy."

Lord Faulks has asked government departments whether judicial review seriously impedes the proper and effective discharge of their functions.

Faculty observes that there is a premise in the questions that the discharge of functions "is impeded by decision makers having to have regard to the law and that it is open to the executive and the legislature to seek to 'rebalance' that issue by preventing or restricting, through legislation, the recourse of citizens to the courts".

Its response asserts: "We profoundly disagree with such premise."

Developing its submission, Faculty explains: "It is the duty of the state authorities, especially in democratic systems, to stand up for and protect fundamental rights, often against majority opinion.

"This anti-populist democratic ideal requires high standards of decision-making within government, which must respect the demands of proportionality, reasons and fairness. It promotes the virtue of tolerance. It is capable, also, of making the democratic process more vigorous, by a heightened insistence on freedom of speech and associated political freedoms. 

"The questions posed by this IRAL call for evidence seem instead to seek to further a new constitutional programme – the aims of which are to free government from the legal restraints properly imposed upon it by being called to answer before the courts to defend the lawfulness of its actions (whether alleged to be in breach of international or domestic law standards)."

Faculty fears that without the prospect of being held responsible, decision makers could be given impunity, and the public would be stuck with bad decisions without any legal way of having them reconsidered.

It is not the case, it emphasises, that the court is substituting itself for the decision maker: "Judicial review is a review of the procedure whereby the decision was reached, and that is all… The remedy is, almost invariably, confined to demanding that a public body carries out its functions in a lawful manner."

Any statutory intervention beyond the procedural would risk "artificially stymying the development of the law", Faculty continues.

"There is no question of it being appropriate for a government to seek to hamstring the judiciary’s powers, in an attempt to make decision making easier… There is no case for any decisions being made immune from judicial review, since no power conferred on Government is unlimited. Any such suggestion is chilling."

Faculty also disputes that there is any pattern either of over-strictness of over-leniency in relation to awards of expenses against an unsuccessful party, while noting that Court of Session fees "can, and do, amount to a material barrier to justice".

Standing to bring a claim, along with available remedies, should be a matter for the courts, and not for the review panel: "the rule of law would not be maintained if, because everyone was equally affected, no one was able to bring proceedings to seek clarification of the law".

Rejecting the case for any decisions being immune from judicial review, Faculty sums up: "The simple issue is this: in a constitutional democracy, all power is limited. The location of the boundaries of power is a matter of law and, therefore, the task of the courts to explain".

Click here to view the full response.