From bad to worse: The Justice Secretary on judicial review

I have written on several previous occasions — most recently in this post — about the Government’s attempts to restrict access to judicial review through the Criminal Justice and Courts Bill and, in particular, about the attempts of the Justice Secretary, Chris Grayling MP, to justify the Government’s position. As part of ongoing legislative ping-pong between the House of Commons and the House of Lords on this matter, the Bill returned to the Commons yesterday, and the Commons, unsurprisingly, sided with the Government.

In my earlier post, I said that the Justice Secretary’s stance revealed five fundamental misconceptions concerning the UK’s constitutional arrangements and the place of judicial review within them. Nothing in yesterday’s debate causes me to revise that assessment. One passage, however, does stand out. Grayling said: 

The whole purpose of the reforms is to protect public bodies against cases brought on a technicality. One of my concerns that has not been addressed is about secondary legislation. I have severe doubts about whether secondary legislation should be subject to judicial review, but it is; Parliament itself can be judicially reviewed.

The first part of this paragraph is merely a repetition of the position previously adopted by Grayling: that there is a category of unlawful government action that should be immune from legal challenge on the ground that it can be characterised as a technicality. I explained in my previous post why this view was misguided. It is pleasing to see David Davis MP — demonstrating far greater constitutional perspicacity than David Davies MP, on whose recent outburst concerning the Human Rights Act and the Paris shootings I posted last week — reiterating that view. Commenting on the government’s proposal that “technicalities” should be litigable if there is an “exceptional public interest” (whatever that means) in doing so, Davis said:

I speak from memory, so forgive me if I do not have this exactly right. My understanding was that my right hon. Friend wanted effectively to strike out judicial reviews that were almost procedural, in which the outcome would have been the same whether the organisation had obeyed the rules or not. Could he see procedural issues being an exceptional public interest? I think that they are an important public interest: that we make our agencies and our Governments obey the law. It is after all the point of judicial review.

The second part of the excerpt from Grayling’s speech set out above, concerning secondary legislation, reveals a misunderstanding of our present constitutional arrangements that is breathtakingly inaccurate and/or a policy agenda that is astounding. Grayling appears to be suggesting that secondary legislation should not be susceptible to judicial review, and appears to attempt to justify this stance by suggesting that the reviewability of secondary legislation entails constitutionally inappropriate judicial oversight of “Parliament itself”.

There are so many problems with this position that it is hard to know where to begin, but let me try. Contrary to what Grayling implies, there is no constitutional difficulty or inappropriateness involved in judicial review of secondary legislation. Secondary legislation is administrative, or executive, legislation; it is valid only to the extent that it is enacted within the authority granted to the executive government by Parliament. It follows that secondary legislation is a form of law wholly distinct from Acts of Parliament: the latter are cloaked with the protective effect of parliamentary sovereignty; the former, not being parliamentary legislation, is not and should not be.

Far from amounting to an infringement of curial respect for parliamentary sovereignty, judicial review of secondary legislation cements Parliament’s constitutional position: among other things, it ensures that legislative primacy remains with Parliament, and that other, administrative, institutions are permitted to legislate only on the terms set out by Parliament in the controlling statutory text. As such, judicial review of secondary legislation is not only justified but mandated by the trinity of constitutional doctrines — the rule of law, the separation of powers and parliamentary supremacy — that lie at the core of the UK system. Any suggestion — of which there is more than a hint in the extract from Grayling’s speech above — that the courts’ powers to review the legality of secondary legislation should be diminished or removed therefore represents an assault upon those bedrock constitutional principles. Such suggestions must be resisted energetically and in the strongest terms.