Government zealots fix their sights on judicial review

On 24^th September 2019, the government determined to rein in the courts. The prime minister Boris Johnson had taken the remarkable decision to prorogue parliament for five weeks, and legal challengers had fought the decision all the way to the Supreme Court. In a judgment watched by millions, the 11 justices, led by Brenda Hale, ruled unanimously in the claimants’ favour that the prorogation was unlawful. The government had no choice but to comply, albeit grumpily, and parliament returned in short order.

The issue at hand had been resolved. But it quickly became apparent that a slow-burn response was being formulated. The government loses judicial review cases regularly—be it on immigration, employment tribunal fees, or, as in the first Gina Miller case, the triggering of Article 50. But something changed that September day. Reports soon surfaced that Johnson’s svengali Dominic Cummings wanted to “get the judges sorted,” and when the Conservative manifesto landed in late 2019, a constitutional commission was trailed, alongside a warning that judicial review should not be “abused to conduct politics by other means.”

In August, the government put parts of this plan into action. Rather than a full constitutional commission, a “review of judicial review” was announced in the first instance. Our current freedoms to challenge the decisions of public bodies will be scrutinised by an independent panel of six experts (most, but not all of whom, specialise in public law): Carol Harlow QC, Vikram Sachdeva QC, Alan Page, Celina Colquhoun and Nick McBride, chaired by former justice minister Edward Faulks. They will report back later this year. But what can we expect from the recommendations? Is there a reasonable case that JR has gone too far? Or is the whole thing a sinister attempt to remove a vital check on executive power?

To find out the answers, I spoke to experts including top QCs, prominent politicians and ex-Supreme Court justices. Their views varied, but the overwhelming consensus was that this announcement could be very bad news. For Dominic Grieve, the former attorney general who was thrown out of the Conservative Party by Johnson, one interpretation is that “Cummings is in charge, and full of his radical zeal to pursue his culture wars further by curbing the power of judges.”

It is nonetheless important not to dismiss the review out of hand. Because critics are right when they point out that judicial review (especially immigration cases) has been on a general upward trend over the decades, driven in part by the passing of the Human Rights Act. In 1980 there were 491 JR proceedings. This rose to 4,200 in 2000 and 16,400 in 2013, though reforms, including to legal aid, have since reversed much of the increase. JR is by definition a burden on the government—a time-consuming check on decision making, it exists to ensure legality of process and outcome, however inconvenient for ministers or civil servants.

This is the background against which the panel was announced, and its membership and terms of reference published. But as the detail circulated, the legal community grew more and more worried. When I asked one deputy high court judge whether she was concerned, I received a one-word response: “yes.”

It quickly became apparent that these terms of reference are incredibly broad (albeit overlapping). The panel will look at: whether the grounds for judicial review should be “codified in statute”; whether the issue of what is justiciable “requires clarification” (framed elsewhere as “whether certain executive decisions should be decided on by judges”); on which grounds the courts should find decisions unlawful; amending “the remedies available” to address grievances where the law has been broken; and whether “procedural reforms” are necessary to “streamline the process” of JR. This reaches far beyond anything contemplated in the last round of coalition-era reforms. While the panel is independent, the government’s ultimate intention seems transparent: to limit the routes by which its decisions can be challenged.

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The judiciary is used to being scrutinised, but rarely has that scrutiny been so intense. Judges, runs the argument, have grown too big for their boots, and taken to ruling on political issues which should rightly be left to parliament. Former Supreme Court justice Jonathan Sumption is the most prominent advocate of this view, while the Judicial Power Project at the influential think tank Policy Exchange has published reports to the same effect. One such paper carried a foreword by former Tory leader Michael Howard, who told me: “there is no doubt that, over many years, there has grown a marked tendency for the courts to intervene in political decision making… there has also been a significant increase in the scope of the longstanding principle of judicial review” which, in his view, “enables courts to set aside ministerial decisions which they hold to be unreasonable.”

The perceived issue is not just outcomes of cases but the right to rule on certain questions at all. As Sumption put it to me last year, “the courts are not entitled to interfere in what is essentially a political issue and not a legal one.” This is a claim about “justiciability”—whether a matter is one for judges to decide.

That this is the view driving the government’s project is obvious. The panel’s chair Edward Faulks is, Grieve told me, “no fool.” Yet as news of his appointment circulated, it quickly came to light that he had attacked the prorogation judgment on the ConservativeHome website. Citing the work of the JPP, Faulks bemoaned a “significant, unjustified constitutional shift.” MPs must seek to “limit the courts’ incursion into political territory,” he wrote (also suggesting specific courses of legislative action: it will be interesting to see if these are echoed in the panel’s recommendations). That position is broadly in step with opinions voiced by other members of the government, such as Attorney General Suella Braverman. Different panellists will hold different views; the fear remains that, however independent, they were selected for ideological reasons.

In the wider legal and academic community, however, there is by no means consensus that JR has gone too far. There are already hurdles to jump over for those seeking judicial review, not least in terms of cost (if you lose, you will usually have to pay the other side’s legal fees). In 2018, only 5 per cent of claims reached a full oral hearing in the High Court (the others being mostly refused permission, withdrawn or resolved out of court). Of these, the relevant government body won about half outright. If one interpretation is that too many claims are lodged without merit, another is that the odds are stacked against the claimant from the beginning.

The high constitutional arguments are equally open to question. For even in the more high-profile JR cases, it is questionable whether the courts ever really encroached on political terrain. In the 2017 Gina Miller ruling on triggering Article 50, MPs had passed the European Communities Act when we joined the EU, and repealing primary legislation is beyond the scope of the government’s powers. The SC therefore passed the issue back to parliament to decide; the merits of Brexit were not under consideration. The 2019 prorogation case was not about the merits of Brexit either but the right of parliament to convene as the deadline approached. The decisions might have had a bearing on political issues, and enhanced the power of parliament, but they did not concern politics as such.

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What changes might be implemented? The power in play in both Miller cases was the royal prerogative, the ancient authority of the Crown which in practice is vested in ministers: for the former case, in the realm of international negotiations; for the latter, to prorogue parliament. The government likely hopes to weaken judicial oversight in relation to this power.

But this would be a retrograde step at odds with decades of constitutional development. “It would be very strange if that one power were exempt from judicial review,” said Jonathan Mance, a former deputy president of the Supreme Court, when we spoke over the phone in late August. Mance cited the famous 1984 GCHQ case which established that exercise of the prerogative is justiciable. The law has developed substantially since then, with greater checks on how government wields its power.

Attempting to change this now through legislation would be “a very difficult exercise, and actually a very unfortunate exercise,” he said, “if it achieved anything other than a general restatement of the present position,” which, in the settlement between different branches of the state, “recognises the complexities of life and the need to balance the factors.” The courts for their part have “not exceeded the proper bounds.”

According to Grieve, “you can tinker a bit with process, but any attempt to exclude the courts from reviewing certain executive acts will end badly, with a major constitutional clash both with judges and the Lords.” (Link mine.)

In the most extreme case, if the government sought to implement truly radical limits to JR, the courts would be unable to interpret such legislation straightforwardly and at face value. That is because they are guided not just by statute but the common law and the UK’s constitutional settlement in the broadest sense. If these things point in different directions, then as professor Mark Elliott has written in a series of excellent blog posts, such legislation “would fall to be construed by courts in pursuit of their innate interpretive function and by reference to a set of fundamental constitutional principles, of which parliamentary sovereignty is only one.”

There is much else in the government documents which leaps out as potentially problematic, including possible new limits to the “duty of candour,” which compels public authorities to assist in the search for truth, especially in relation to the disclosure of documents, and not simply seek to win in court. Floated “amendments” to the “law of standing” threaten to further restrict the right to bring JR itself, possibly precluding charities and campaigners from challenging decisions unless they have a direct stake in the outcome (those who have such a stake will often lack the social or economic means to bring a challenge). The suggestion the panel will look at costs yet again is enough to set off alarm bells. As for the possible new constraints on “remedies,” if these fail to right the wrongs of unlawful decisions, that will be as effective a way to neuter the JR process as could be devised.

It is vital to get this process right. Shami Chakrabarti, former shadow attorney general and ex-director of human rights charity Liberty, said: JR “is the means by which we challenge state abuses of power under the law.” It is crucial that we have “effective mechanisms for holding the powerful to account.” That is true for prosaic everyday cases as well as the headline-grabbing Supreme Court showdowns.

We have seen the power of judicial review to improve decision-making, and recently the mere threat of JR contributed to a government U-turn on the A-level grades fiasco. There are grounds for optimism going forward. “Faulks, with his broadly-based team, will,” Mance was confident, “make it a priority to consider whether and if so where there is any basis for change.” Grieve hopes Faulks will not come up with “over-radical ideas.” Other panellists command wide respect in their fields (professor Carol Harlow has something of a fan base, especially among her former students). The Lord Chancellor Robert Buckland has offered reassurances that “judicial review will always be an essential part of our democratic constitution—protecting citizens from an overbearing state.”

No system is perfect and there is always scope for reform. For that to be worthwhile here, it must be conducted with an open mind, truly evidence-driven, and avoid fighting phantom problems. The panel hopes to complete its task this year. The jury is out on whether those conditions will be met.