Judicial process

Decision in GSCE-marking judicial review puts the process, and its implications, under the spotlight

Nigel Giffin
Nigel Giffin QC

There may be flowers on the desks of a few 11KBW silks tomorrow morning. But they won’t be sent by a secret valentine to Clive Lewis QC or Nigel Giffin QC. It is more likely they will be signed by ‘an anonymous, relieved Government minister’.

After the state got schooled in the Court of Appeal on Monday over its flawed ‘back-to-work’ scheme (13 February 2013), there must have been a sigh of relief from Westminster when today’s GCSE judgment came down in favour of the examination boards.

11KBW was also on the back-to-work case, with Paul Nicholls QC appearing on behalf of the Department for Work and Pension (DWP), which was defeated by Landmark Chambers’ Nathalie Lieven QC for 24-year-old Caitlin Reilly.

Two embarrassing defeats in as many days would have heaped further pressure on the establishment’s policy makers.

However, in dismissing a judicial review application brought by school leaders, teachers’ unions, councils and affected pupils, Lord Justice Elias said there was no “unfairness, conspicuous or otherwise” in what the examining boards did.

Lewis and Giffin, along with Peter Oldham QC and colleagues Jane Oldham, Christopher Knight, were all on the winning side of a Chinese wall, with Clive Sheldon QC, Joanne Clement and Joseph Barratt coming off second best in this particular dispute.

But it won’t be a case of ‘no love lost’ amongst the set – with the profile of 11KBW’s education law practice only enhanced by this instruction.

The GCSE controversy was of such magnitude and urgency that the courts agreed to hear it as a ‘rolled-up’ hearing, ruling on both the permission to hear the application and then the merits of the application itself in one go.

What today’s swift decision does show is the importance of the judicial review process to democracy.

According to the Government, such high-profile claims brought against the state are not the motivation for the current planned overhaul of the system. Justice Minister Chris Grayling and Prime Minister David Cameron have argued that the proposals are about freeing courts that are “clogged up” with judicial review applications.

Yet lawyers in the public law sector have expressed their suspicions that the constant negative publicity around claims over HS2, the Olympic Stadium Legacy and the West Coast Main Line tender are undermining the Government’s authority – and that this is partially behind moves to revamp the system.

This issue is also the subject of scrutiny from the House of Lords Constitution Committee today as it looks at whether the views of the judiciary are adequately represented in Parliament and the Government when making proposed changes to policies such as the process of applying for judicial reviews.