Relax, everyone: the Lord Chancellor is willing to “retain” judicial review

Here is an excerpt (which I came across thanks to a tweet from @JackOfKent) from evidence given by the Lord Chancellor and Justice Secretary, Chris Grayling, to the Justice Select Committee earlier this month:

Q218 Jeremy Corbyn MP: Do you accept that judicial review is quite an important right that citizens have in order to hold public authorities to account?

Chris Grayling: Yes, I do, and we intend to retain judicial review as a way for individuals and others to hold public bodies to account. However, I am also very much of the view that judicial review is not the creature it was originally intended to be. It has expanded in numbers beyond where it was originally intended to be, and it is often used as a PR tool rather than a serious legal tool. Too many cases are being brought before the courts by individuals and law firms that are simply rejected at that point, which have been funded by the taxpayer. I think we need a tighter system that protects judicial review as it was originally intended to be, and not what it has become.

The implication of Grayling’s response is that “retaining” judicial review is a matter for the Government and Parliament: that the ongoing existence of the High Court’s supervisory jurisdiction is contingent upon the political branches’ willingness to tolerate it. This reveals an impoverished – indeed, incorrect – understanding of the UK’s constitutional arrangements premised upon an unsubtle notion of parliamentary sovereignty.

The Lord Chancellor would do well to read Lord Hope’s judgment in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 (along, perhaps, with Jackson v Attorney-General [2005] UKHL 56). The AXA case concerned the contours of the Scottish Parliament’s legislative authority, but Lord Hope’s remarks at [46] of his judgment are clearly of more general application:

We do not need, in this case, to resolve … conflicting views about the relationship between the rule of law and the sovereignty of the United Kingdom Parliament may be reconciled. The fact that we are dealing here with a legislature that is not sovereign relieves us of that responsibility. It also makes our task that much easier. In our case the rule of law does not have to compete with the principle of sovereignty … [T]he rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle … We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.

The reason for the uncertainty, referred to by Lord Hope, about the relationship between parliamentary sovereignty and the rule of law is that the question remains unresolved. And it remains unresolved because judges and politicians normally exhibit an appropriate degree of mutual respect for one another’s spheres of constitutional authority. Our unwritten constitution presupposes and requires a form of institutional comity that avoids head-on confrontation of the sort of issues for which, absent a codified governing text, no adequate roadmap exists.

The restraint implicit in such comity has the effect of situating the bald doctrine of parliamentary sovereignty within a constitutional framework that informs, and limits, how legislative authority may properly be exercised. Put bluntly, judicial review is part of the constitutional deal, notwithstanding that the deal finds no expression in a written constitution. To adapt Lord Diplock’s aphorism (in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157) concerning the separation of powers: Parliament makes the law, the government runs the country, and the courts ensure that it does so lawfully.

Until recently, Lord Chancellors would have required no instruction in these matters. Grayling, it seems, breaks the mould in this respect as in many others. It might of course be argued that little, if anything, should be read into the casual remarks set out above. But I would not be so sure. An upfront attempt to abolish judicial review is, of course, unlikely, even with the present Lord Chancellor at the helm. But the government’s December 2012 consultation paper on restricting access to judicial review coupled with its legal aid proposals demonstrate that a dim view is taken of the courts’ inherent jurisdiction to hold the executive to account. In particular, the proposed changes to the legal aid system would, if implemented, render judicial review a largely theoretical possibility for many categories of prospective litigants. Time may tell whether Lord Hope’s axiom bites upon such backdoor attempts to subvert the courts’ capacity to uphold the rule of law. It is to be hoped, however, that the government will exercise the self-restraint which constitutional propriety demands – meaning that the question will remain unresolved.

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