Now is the time to air our discontent

The challenge to Richard III’s proposed burial site should not be used as a tool to limit judicial review rights

Matthew Howarth

The subject of where Richard III’s remains should be reinterred has stirred up strong opinions, particularly since Gordons issued judicial review proceedings on behalf of the Plantagenet Alliance seeking to challenge the proposed burial site.

This, and the worldwide interest in the story, is perhaps evidence the matter should have been subject to greater consultation at the time the exhumation licence was granted.

The case raises many arguments and is without precedent. One of the basic issues is whether the ultimate burial place of a former king of England, and an historically and culturally important figure, should be decided by the completion of a proforma licence request addressed to the Ministry of Justice and a university department. Permission to bring a judicial review was granted on all grounds.

Colourful as the claim may be – to some at least – it is important that the subject matter of this claim does not obscure the broader significance of the nature of judicial review challenges. The challenge is not one on the merits of the decision made but on how that decision was reached.

Challenges against regulatory body and government institution decision are under Government scrutiny. The recent announcement of steps to limit the number of judicial reviews, which the Justice Secretary Chris Grayling has described as a system used as a “cheap delaying tactic”, is an example of this.

These changes include an increase in the costs of judicial review challenges and a reduction in the time limits when challenges can be brought. The Government has also stated a wish to restrict those who can bring claims by announcing a desire to revisit the sufficient interest test requirements for putative claimants.

The underlying premise of these changes is that Government is being clogged up by time-wasters and meritless claims. While the evidence shows that there has been an increase in judicial review claims in recent years, largely reflected by asylum and immigration cases, it is unclear how the procedural changes to judicial reviews will restrict the numbers of claims in the future.

Will an increase in issue fees and a narrower claim window really reduce the number of challenges? Is it not just as likely to result in more claims being issued without being given the chance to properly articulate claims in the now restricted time scales imposed?

Rather than criticise those who seek to challenge the decisions of government bodies, perhaps the quality of the decisions themselves should be considered. There is a risk that these bodies adopt a knee-jerk reaction, rejecting all challenges as without merit – a kind of institutional denial of fallibility. Even governments can get things wrong.

The ability to hold the executive to account is essential and is a corrective to the potential abuse of administrative powers and failure to implement decisions in a lawful manner. We should be careful that this important message is not lost in the noise of battle of the Wars of the Roses. Judicial review is very important. It matters.