Access to this remedy should be widened, not narrowed, says Robin Williamson.
The Government has launched an independent panel to look at judicial review (31 July 2020). The Conservative party promised in its manifesto at the last election that:
‘We will ensure that judicial review is available to protect the rights of individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.’
But where does one draw the line between protecting the rights of individuals against an overbearing state, and ‘conducting politics by other means’?
In this article, I consider the terms of reference of the panel, a Supreme Court decision at which they are clearly aimed, and what the review might mean, in the context of tax, for the ability of the taxpayer to challenge administrative acts of HMRC in the courts.
The Miller case on prorogation
In R (oao Miller) v The Prime Minister; Cherry & Ors v Advocate General for Scotland  UKSC 41, 11 Justices of the Supreme Court held unanimously that the Government’s advice to the Queen to prorogue Parliament for five weeks in the run-up to the proposed departure of the UK from the EU on 31 October 2019 was unlawful and void. The High Court had previously held that the prorogation was a political decision which was non-justiciable, i.e. one with which the courts could not interfere. The Scottish Court of Session, on the other hand, had held that the decision was justiciable, and was unlawful in that it was made for the improper purpose of stymieing Parliamentary scrutiny of the Government.
The Supreme Court held that the lawfulness of the Prime Minister’s advice to Her Majesty to prorogue Parliament was, indeed, justiciable. It came within the supervisory jurisdiction that the courts had exercised over acts of the Government for centuries. The courts have jurisdiction to decide upon the existence and limits of a prerogative power. Lady Hale, giving judgment, described the limit of the prerogative power as follows:
‘For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.’
No reasonable justification was put before the Court for proroguing Parliament for five out of the eight weeks before the expected date on which the UK would leave the EU, and the justification given – in order to prepare for the Queen’s Speech on 14 October – had to be set against the usual period of five or six days’ prorogation in advance of a Queen’s Speech. Hence the unanimous conclusion of the Court that:
‘the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.’
Consequently, the prorogation and the Order in Council which gave rise to it were void and of no effect, so Parliament had not been prorogued.
Terms of reference of the review
I have dwelt on the Miller case because the terms of reference of the new panel can be seen as, and are very probably intended as, a direct challenge to the reasoning of the Supreme Court.
For example, the first point to which the terms of reference require the review to give particular consideration is whether ‘the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.’
The second point (somewhat inelegantly expressed) is ‘whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government’.
On the first point, given that judicial review is a common law jurisdiction reserved to the High Court, the scope of which has been built up over centuries, the sheer difficulty of codifying every aspect of it should be plainly apparent; and even if the attempt was made, it is hardly likely that the common law could ever be swept away. Regarding the second point, as for the Government determining what is and what is not justiciable, that would negate the entire purpose of judicial review, which is to impose a check on the executive if it ever seeks by its actions to contravene or undermine the rule of law.
The panel is also asked to consider what procedural reforms are necessary to ‘streamline the process’. This includes ‘possible amendments to the law of standing’, i.e. who is entitled to bring judicial review proceedings in relation to a matter. One might speculate whether that is directed at Mrs Gina Miller, a private citizen who brought the case against the Prime Minister in the Supreme Court.
Apart from the indomitable Mrs Miller, how much does the ordinary citizen care about such matters? Very much, if the numbers of protesters thronging Parliament Square on the evening when the (purported) prorogation of Parliament was announced last year are anything to go by.
What effect will the review have on tax cases?
Judicial reviews in tax rarely have the constitutional significance of a purported challenge by the Government to the supremacy of Parliament. However, they do concern important individual rights, and offer the only judicial remedy where the Government has seen fit not to allow a right of appeal against a decision by HMRC, or where a decision involves the use of official discretion.
It is surprising that the Government should have reacted as it has to a single Supreme Court decision that went against them, when – if tax cases are anything to go by – the vast majority of judicial reviews uphold executive decisions. The bar to success is set very high – the court will only interfere with such a decision if (as in the Miller case) it is beyond the powers of the decision-making body, or it is so unreasonable that no tribunal which had taken the right considerations into account and avoided irrelevant considerations could have arrived at it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 233). The court will not quash or substitute a decision simply because it disagrees with it. Hence the many disappointed litigants who have challenged, say, a follower notice or an accelerated payment notice, and there will doubtless be many more.
If anything, access to judicial review in tax should be widened, not narrowed. Currently, only the High Court can exercise the jurisdiction, or the Upper Tribunal in limited cases, and costs can easily mount up to the extent that no citizen of modest means can afford to embark on the process, unless supported by (for example) a trade union or charitable body. Time limits are strict and have often expired by the time that a private, unrepresented citizen realises that they may have a case. If the review is serious about ‘ensuring that judicial review is available to protect the rights of the individuals against an overbearing state’, it should also consider how it can be made easier for private individuals to do just that, not more difficult.
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