The House of Lords returned again yesterday to the implications for judicial review of the Criminal Justice and Courts Bill. (I have written about the Bill in several previous posts, the most recent of which can be found here.) The speech made by Lord Pannick in yesterday’s House of Lords debate sets out in emphatic and compelling terms why judicial review is constitutionally imperative, and why government attempts to clip the courts’ wings must be viewed with grave suspicion. The speech is worth reading in its entirety, but the following passage is particularly powerful:
However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.
Pannick’s argument is so clear and (to my mind, at least, persuasive) that it requires little by way of comment, save to add that he is surely correct to emphasise that what amounts, from a governmental perspective, to the sometimes frustrating nature of judicial review is not a justification for displacing or diluting it. Far from it: it demonstrates that judicial review is fulfilling its vital constitutional purpose of ensuring government according to law, however inconvenient to government that might be.