The UK Government has announced a review of judicial review — the Independent Review of Administrative Law — with notably broad terms of reference. This post is the first in a series that will consider some of the potential changes to judicial review that the Government appears to be contemplating. Subsequent posts, which will be published in the coming weeks, will address specific possibilities raised by the Review’s terms of reference: namely, codifying the grounds of judicial review; restricting the scope of the category of justiciable matters; the limiting the grounds on which unlawfulness results in nullity; and ‘streamlining’ the judicial review process, including by altering the law of standing. In this initial piece, however, I consider the broad sweep of the terms of reference in order to illustrate the scope, nature and potential constitutional implications of the likely reform agenda.
The potential scope of the reforms
It does not, of course, follow that the Review will make recommendations exploiting every possibility apparently countenanced by its terms of reference or that the Government will act to implement every recommendation made by the Review. Nevertheless, at the beginning of this series of posts, it is instructive — and sobering — to identify what the law of judicial review might look like if a reform agenda were to be pursued that sought maximally to capitalise on the possibilities that are implicit in the Review’s terms of reference and the accompanying notes. Notwithstanding the opaqueness lent to those terms of reference by the syntactical errors with which they are replete, it is tolerably clear that the Government at least has in contemplation a radical suite of changes including the following:
- Setting out the grounds of judicial review in legislation that might seek to define some grounds of review more narrowly than they are currently defined by the common law and/or seek to preclude recourse to some of the grounds of review that are currently available at common law
- Legislating to restrict the principle of justiciability so as to shield from judicial review some matters that are currently subject to it
- Limiting the remedial effect of certain grounds of judicial review in order to preclude them from rendering an afflicted decision a nullity, thereby investing certain unlawful decisions with legal effects that they would otherwise lack
- Limiting the opportunity for collateral challenge, whereby an individual can raise the unlawfulness of administrative action, including by way of a defence, in proceedings other than judicial review proceedings
- Reducing the extent of the Government’s duties of disclosure and candour in judicial review proceedings (and, in particular, in judicial review cases that are concerned with ‘policy decisions’ — whatever that means)
- Limiting the law of standing so as to preclude cases from being brought except by someone who is directly affected by the relevant decision, thereby preventing (for example) concerned citizens or expert groups from challenging Government decisions in circumstances in which those directly affected may (for economic, social or other reasons) be unable to bring a challenge themselves
- Restricting rights of appeal in judicial review cases, including in relation to denials of permission to bring judicial review proceedings
- Altering the costs regime in a way that makes it financially more difficult for judicial review proceedings to be brought against the Government
The underlying agenda
The membership of the Review panel includes some distinguished public lawyers, and nothing that follows is intended to cast doubt on the capacity of the panel to act independently. Nevertheless, it is important to bear in mind the background to the setting up of the Review and the policy agenda that plainly forms a key component of that background. It is also legitimate to take account of views publicly advanced by panel chair Edward Faulks, a former Minister in David Cameron’s coalition and Conservative Governments, his stance on relevant matters doubtless having been well-known to the Government when it asked him to lead the Review.
It is no secret that the Government regards the courts, and their judicial review function in particular, as a thorn in its side — which is precisely as it ought to be in a constitutional democracy that respects the rule of law and the separation of powers. Within such a system, holding the Executive to account by reference to legal standards that are enforceable via judicial review is a bedrock, and non-negotiable, function of an independent judiciary. It therefore hardly surprising that successive Governments have found judicial review to be an irritant, an inconvenience and sometimes a major obstacle to their agenda.
This has sometimes resulted in significant tension between Ministers and the courts, and it would be wrong to suggest that Conservative administrations are uniquely susceptible to this. Indeed, not very long after his Government caused the Human Rights Act 1998 (HRA) to be enacted, Tony Blair and some of his senior Ministers found themselves hoist on their own petard, making little effort to hide their annoyance. The prospect of amending the HRA was thus raised in the context of the ‘war on terror’, while the Blair Government and the judiciary faced off over an attempt — that ultimately withered on the vine — to remove from the scope of judicial review certain decisions in the politically charged asylum and immigration arena. However, while administrative irritation with judicial review is nothing new, the current reform agenda is potentially much more far-reaching than anything that has been contemplated in recent years or decades. This is so in part because it relates not to the courts’ legislatively conferred powers under the HRA but to their inherent powers of judicial oversight, and in part because the potential reforms taken together would amount not to an adjustment of the law of judicial review but to a radical overhaul that would diminish it significantly.
One does not have to search hard to identify the impetus for the changes that the Review’s terms of reference appear to contemplate. In the aftermath of the Miller II case, in which the Government received a bloody nose following its attempt unlawfully to prorogue Parliament for several weeks at a critical phase in the Brexit process, the Conservative Party’s manifesto made plain its desire to clip the courts’ wings. Promising a Constitution, Democracy and Rights Commission that has not materialised, and for which the current Review is presumably intended to substitute at least in part, the manifesto undertook to ‘update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’. The manifesto went on to say that the Government would ‘ensure that judicial review is available to protect the rights of individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays’.
It is noteworthy that these sentiments are clearly shared by Lord Faulks, the chair of the current Review. In 2017, he argued in favour of a ‘full fat’ option in respect of human rights reform, arguing that the UK should ‘leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and Parliament to protect human rights’. This, he said, would be of a piece with the Brexit agenda that was ‘about sovereignty’. Against this background, Faulks implied, remaining a member of the Council of Europe and a party to the ECHR would be anomalous: ‘while we remain part of the ECHR and have our own Human Rights Act which incorporates reference to the Strasbourg Court, we will continue to cede a significant amount of sovereignty to that other European Court’.
It does not necessarily follow that contending in favour of the de-Europeanisation of human rights protection necessary implies an agenda of dejuridification. But it is in fact often that the case that the two go hand in hand, whether as a result of pragmatic inevitabilities or for deeper ideological reasons. The pragmatic point is that withdrawing from the ECHR system and relying on a purely domestic human rights regime implies, at least as a matter of orthodox constitutional theory, a weaker role for the courts, given the absence from a wholly domestic system of international norms that do not bend the knee at the altar of parliamentary sovereignty. It is precisely this ineluctable pragmatic consequence of de-Europeanising the protection of human rights that renders this approach an attractive one to those who ideologically object to the juridification of human rights (to which the HRA has contributed) and who, more generally, adopt a relatively narrow stance in respect of the legitimate scope of the courts’ constitutional role (of which the protection of human rights as an important, but is far from the only, part).
It is therefore no surprise to find Faulks, in a piece published earlier this year, trenchantly criticising the Miller II judgment, arguing that it cast aside ‘principled limits on the justiciability of the prerogative power to prorogue’, that the Supreme Court interfered in ‘the stuff of politics not law’, that the upshot is a ‘significant, unjustified constitutional shift’ that Parliament should legislatively correct, and that John Finnis’s (in my view misguided) excoriation of the judgment ‘is the final word on the subject’. For reasons that I have explained elsewhere, and to which I will return later in this series of posts, those criticisms are far wide of the mark. However, the important point for present purposes lies not in their merits or otherwise, but in their forceful articulation by the chair of an Independent Review tasked with considering ‘whether the legal principle of non-justiciability requires clarification’. It will be interesting to see whether the Review disagrees with its own chair’s clear view, advanced only six months ago, that the Government should ‘invite Parliament to legislate to settle authoritatively the non-justiciability of the prerogative power to prorogue Parliament and perhaps also to impose further limits on the scope of that power’ — and that ‘[w]hile they are at it, Parliament might want to legislate to protect other, related prerogative powers’.
It would be simplistic to argue — and I do not argue — that any attempt to legislate in relation to the principle of justiciability would be constitutionally illegitimate, and if the Review were to recommend such legislation then any assessment of such a proposal would need to made in the light of the detail. However, for anyone committed to the constitutional values of the rule of law and the separation of powers, the broader reform agenda within which the particular question of justiciability will be examined by the Review cannot be anything other than deeply troubling. While the Review’s recommendations might ultimately be far more pedestrian than the potential implied by the terms of reference, the Review has the potential to propose a far-reaching set of changes to judicial review that would significantly reduce the courts’ practical capacity to uphold the rule of law while attempting radically to recast its constitutional basis by rendering it a creature of statute. In future posts in this series, I will argue that the constitutional undesirability of such changes is plain — and that the constitutional capacity of the Government and Parliament to introduce such reforms is sufficiently open to question as to risk a constitutional crisis should they attempt to neuter judicial review to the full extent that the Review’s terms of reference appear to contemplate.