Covid-related judicial reviews brought by high-profile legal campaign group The Good Law Project feature in updated guidance for civil servants to reduce the risk of legal challenges.

The ‘Judge Over Your Shoulder’ document is designed to help civil servants advising ministers on decision-making. Last published in 2016, the Government Legal Department says the guidance has been 'modernised, updated and discusses the significant legal changes of recent years, including the Judicial Review and Courts Act 2022'.

The cases considered 'reflect current legal positions, with insight provided by government lawyers. It also considers legal concepts, including consultation, proportionality, and justiciability', the GLD says.

The Good Law Project, founded by barrister Jolyon Maugham QC, features in three ‘case examples’. Two Covid-related judicial reviews are cited in relation to the issue of ‘standing’ and whether anyone can challenge the government in court. Another Covid-related judicial review is used to explain the rule against actual or perceived bias.

The guidance also includes a chapter on EU relations.

‘In order to ensure continuity in the law and to avoid creating regulatory gaps, the European Union (Withdrawal) Act 2018 created a new body of domestic law called retained EU law,’ the guidance states. ‘Retained EU law is intended to provide a baseline of rights and obligations which can be amended or replaced by domestic legislation made in the usual way. As of 2022, HM Government plans to reform the approach to retained EU law, and you should check the position with your departmental lawyers,’ civil servants are told.

‘The UK–EU Withdrawal Agreement, including the Northern Ireland Protocol, was concluded to settle the terms of the UK’s withdrawal from the EU. The Withdrawal Agreement provides that certain EU law, including the jurisdiction of the Court of Justice of the European Union (CJEU), continues to apply in the UK in limited circumstances,' the guidance adds.

‘In most cases the continuing application of EU law is time limited. Where required, the Withdrawal Agreement (and the EU law applied by it) are given direct effect in UK law by section 7A of the European Union (Withdrawal) Act 2018 (inserted by the European Union (Withdrawal Agreement) Act 2020). Section 7A provides that the provisions of the Withdrawal Agreement take priority over anything in UK domestic legislation, including anything in retained EU law.’