In a democracy, governments must comply with the law. If a government minister makes a decision that is challenged, it is the constitutional duty of judges to decide whether they have done that. This process is known as judicial review.
The government is not wild about judges telling them they have got it wrong. In recent years, they, and newspapers which support them, have expressed this irritation forcefully and muttered dark threats to the future of judicial review. But the latest threatened salvo, the Judicial Review and Courts Bill, appears—upon its publication yesterday—to be more symbolic than real.
It was feared by many that this would be a serious attempt to restrain what the government saw as judicial overreach. The prime minister was reportedly furious when, in September 2019, the Supreme Court unanimously declared the decision to seek prorogation of parliament for five weeks at the height of the Brexit process unlawful and void. Although the judges were at pains to point out that the decision was nothing to do with the merits or otherwise of Brexit, the charged political context led some to doubt that and to threaten “revenge on the judiciary.”
The 2019 Conservative manifesto promised a major constitutional review to consider whether judicial review was being “abused to conduct politics by another means.” After the Conservative victory, Lord Faulks QC—a former Conservative justice minister—was appointed to lead an Independent Review of Administrative Law. However, the Faulks review, published in March 2021, failed to find systematic problems of inappropriate “political” use of judicial review by the judiciary. It concluded that “the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action,” and said that “politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
And Faulks told the Financial Times that while “There were one or two decisions we thought were wrong by the higher courts… we didn’t think there was a case to change judicial review radically.”
So the Faulks review found there was no “abuse.” Nonetheless, immediately after the report was published, the Ministry of Justice announced that it wanted to “keep this conversation going” and launched a consultation on a wide range of proposals that were not recommended by the Faulks review, but which were euphemistically called “further measures informed by the panel’s analysis.”
The speed and scope of the consultation proposals alarmed many. Stephanie Boyce, then president of the Law Society, voiced concern that they would have made unlawful acts “untouched or untouchable.” Professor Mark Elliott feared they risked “eviscerating judicial review” and called the suggestion that they were intended to promote the rule of law “constitutional gaslighting.” The consultation responses were overwhelmingly against any further changes to judicial review procedure.
So the Queen’s Speech announcement that the government still intended to introduce legislation to clip the wings of judges by “restoring the balance of power between the executive, legislature and the courts” was greeted with concern. The Ministry of Justice claimed its forthcoming bill would deliver on a manifesto commitment “to ensure that the judicial review process is not open to abuse or delay, or used to conduct politics by another means,” ignoring the fact that its own Independent Review had concluded that this was a non-problem.
Commentators geared up to condemn attacks on the rule of law in the Judicial Review and Courts Bill. And then the bill was published. It is a damp squib. Only two of its 48 clauses and five schedules relate to judicial review at all. They implement the two (minor) Faulks proposals. Clause 1 proposes to grant courts a discretion to defer or limit the effect of a quashing order (an already discretionary power to “undo” an unlawful action if justice requires). It is a complex and unnecessary provision, but it is unlikely to change much.
Clause 2 abolishes the right to challenge decisions of the Upper Tribunal where it has refused permission to appeal. The Upper Tribunal was introduced in 2008 to rationalise administration of justice in various other tribunals and is itself a “superior court of record,” equivalent to the High Court. Since these so-called Cart judicial reviews (named for the 2011 case which established them) are available only in a very limited category of cases in any event, this is not a very dramatic change either. Some commentators have expressed concern that the Cart “ouster clause,” restricting the role of the courts, is a “cunning model” for further ouster clauses in other contexts. We will see. The ouster of the courts’ jurisdiction is a serious matter, and even the most executive-minded judges will take the context into account in considering whether the court’s supervision is excluded altogether.
There may be some devilment in the detail. But it seems that a fundamental attack on the rule of law has been seen off, again, for now. All the same, it is still the executive, not the judiciary, that is in danger of stepping on toes in the delicate constitutional dance upon which democracy depends.
