The Justice Secretary on Judicial Review: Five Basic Misconceptions

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The House of Commons yesterday voted to reverse amendments made by the House of Lords to the Criminal Justice and Courts Bill. I have written about the Bill, and the House of Lords’ amendments, previously — most recently here — and will not go into detail about the substance of the Bill or the Lords’ amendments in this post. The essential constitutional question raised by the Bill concerns the extent to which the Government, by causing the enactment of primary legislation, should be able to shield its decisions from judicial scrutiny.

Any attempt by Government to do so has an obviously self-serving quality, and close examination of its motives is appropriate. The Lord Chancellor and Justice Secretary, Chris Grayling MP, therefore had a heavy burden to discharge in yesterday’s Commons debate. Far from discharging that burden, his contribution to the debate revealed several fundamental misconceptions about the nature and purpose of judicial review.

The following is a short excerpt from Grayling’s speech:

Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and is why reform is necessary … If a group can find a clever enough lawyer, almost any Government decision can be judicially reviewed, and very many are, not necessarily on the basis of specific breaches of specific laws, but far too often on a loose argument that something was not quite right with the consultation paper, that there should have been a bit more consultation, or that a tough decision seen in isolation was irrational … A Minister is confronted by the practical threat of the arrival of a judicial review case virtually every week of the year. It is happening all the time. There are pre-action protocols all the time, and cases are brought regularly. Looking across the majority of a Department’s activities, Ministers face judicial review very regularly indeed. It happens weeks apart rather than months apart.

Much could be said about these remarks (and about other aspects of Grayling’s speech). I will confine myself to making five brief points.

First, Grayling says that judicial review “was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool”. The first part of this statement is plainly correct, but nevertheless reveals a significant misconception. Judicial review is not intended, and does not, disrupt “perfectly lawful” decision-making: it stops in its tracks, and is intended to stop in its tracks, unlawful decision-making. Admittedly, Grayling’s point is not necessarily that courts prevent lawful decisions from being taken, but that judicial review slows down the taking or implementation of such decisions pending determination of their lawfulness. However, he offers no evidence (beyond anecdote) in support of his assertion that unmeritorious claims for judicial review are a significant problem. Such an evidence-free approach to policy-making in this area is consistent with the way in which an earlier tranche of judicial review proposals were made, as Maurice Sunkin and Varda Bondy have pointed out.

Second, Grayling appears to think that any “political” invocation of judicial review is unacceptable. In doing so, he conflates two wholly distinct matters. On the one hand, it is right that courts should — and do — limit themselves to considering the lawfulness of Government action. In this sense, judicial review is not, and plainly should not be about, “politics”. On the other hand, however, Government decision-making is inevitably taken in a political context and has political implications, and there is no reason why such matters should prevent judicial review. Nor is there any good reason why those who are politically motivated to challenge the lawfulness of Government decisions should be prevented, by the nature of their motivation, from doing so. The purpose of judicial is not, and never has been, to enforce the rights of individuals (albeit that judicial review may have their incidental effect): rather, its purpose is to ensure government according to law. This is reflected, among other things, in generous standing rules (which were themselves recently threatened by Government “reform” proposals) which recognise that there is a social interest in seeing that Government acts lawfully. If that social interest is promoted by the “politically motivated” as distinct from those who are peculiarly affected by a decision, then so be it.

Third, Grayling characterises the grounds of judicial review as “loose arguments” to the effect that something is “not quite right”. This fundamentally mischaracterises the law of judicial review. As anyone familiar with that field knows, the grounds of judicial review represent concrete legal expressions of fundamental rule-of-law principles. To dismiss such requirements as Grayling does evidences contempt for basic constitutional values. The same is true of his assertion that courts should be required to overlook breaches of “technicalities” and required to uphold decisions which are unlawful. The road to dystopia is paved with political diktats requiring courts to uphold illegal official action.

Fourth, Grayling laments the fact that Ministers are regularly on the receiving end of claims for judicial review. This is not, however, something that should be lamented: it is something that should be celebrated. Judicial review is our principal constitutional mechanism for ensuring that Government is held to account by reference to standards of lawful administration. Judicial review is inevitably frustrating for a Minister intent on pursuing a course that she is convinced is wise, and it is unsurprising that Ministers do no welcome being challenged, whether in the courts by way of judicial review or otherwise. But the ready possibility of such challenges to Government action is a vital component of a constitutional democracy in which those wielding official power are subject to the rule of law as well as to judgement via the ballot box. If Ministers were not resentful of judicial review, or were willing to put up with it because it was nothing more than a once-in-a-blue-moon distraction, then there would be something wrong with the system. At the risk of oversimplification, if Ministers were entirely happy with judicial review, then the courts would not be doing their job properly. Judicial review is, fundamentally, something that Ministers should not like — but is something that they must tolerate.

This leads on to my fifth and final point, which concerns the greatest constitutional solecism revealed by the Lord Chancellor’s speech. He asserts that judicial review “was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country”. This is wholly incorrect. Leaving to one side the debate about whether the Government may have “third source” powers that permit certain action in the absence of specific authorisation, the general principle is that Government has only such power as the law confers upon it. The purpose of judicial is to ensure that Government does not overreach itself: that it exercises only those powers that have been given to it, and that, when exercising those powers, it acts lawfully. If the Government fails to act lawfully — either by asserting authority it lacks or by using power it has illegally — then it acts outside its powers and the courts’ constitutional duty is to intervene and strike down what the Government has unlawfully done.

In this sense, the courts are — and should be — “above the elected Government”. Crucially, however, this is merely another way of expressing a yet more fundamental point: that Government is subject to law, and that the law is therefore “above” Government. Constitutional propositions do not get any more fundamental than this, and the Lord Chancellor would do well to remember that. Of course, the law can be changed and the goalposts thereby moved — which is precisely what the Government is seeking to do by means of the Criminal Justice and Courts Bill. But this raises deeper questions still, about whether our constitutional order is, thanks to the doctrine of parliamentary sovereignty, infinitely malleable, or whether there are certain lines in the sand that cannot be crossed. If there are such lines in the sand, it is highly likely that judicial review is one of them. The Lord Chancellor would do well to bear that in mind, too.