The Judicial Review Review II: Codifying Judicial Review — Clarification or Evisceration?

In my first post on the Review of judicial review, I noted, among other things, the potentially far-reaching nature of the recommendations that might emerge, bearing in mind the Review’s notably broad terms of reference. As I also noted in my first post, the underlying agenda is plainly the limitation of the courts’ powers and the resultant shielding of the Government from judicial scrutiny. It is apparent from the Review’s terms of reference that the Government has in mind a series of interlocking mechanisms by which these aims might be achieved, including various forms of procedural ‘streamlining’ which could dramatically limit prospective claimants’ capacity to pursue judicial review, removing matters from the purview of the courts by manipulating the concept of justiciability, and rendering claimants’ victories Pyrrhic by limiting the circumstances in which unlawful decisions are treated as nullities.

They are all matters for future posts in this series. This post, meanwhile, is concerned with a further component of the apparent strategy for limiting judicial review: namely, codifying the grounds of review. In examining this matter, two key issues fall for consideration. First, what might codification mean in this context? Second, to what extent might codification amount to effective strategy for limiting judicial review — and, relatedly, what might be the constitutional ramifications of a limitation-through-codification strategy?

Three potential approaches to codification

The Review’s terms of reference begin by asking ‘[w]hether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute’. The notes to the terms of reference go on to ask, among other things, whether legislation codifying the grounds of review would ‘promote clarity and accessibility in the law and increase public trust and confidence’ in judicial review. This implies an innocuous, indeed benevolent, agenda aimed at enhancing transparency, certainty and public understanding of the law. Is concern about codification being a potential threat to judicial review therefore misplaced? It is certainly the case that codification would not necessarily present a threat to judicial review. The devil, however, would be in the detail — and the detail would be determined by the underlying agenda. It is at this point that we need to consider the various forms that codification might take. Doubtless there are many possibilities, but for the purpose of the present analysis it will suffice to outline three possible approaches — which, for convenience, I will term the ‘window-dressing’, the ‘all-encompassing’ and the ‘restrictive’ models of codification.

The window-dressing model is the most straightforward. It would involve setting out in legislation the grounds of judicial review as a set of high-level principles. At the very highest level of abstraction, such legislation might do little more than plagiarise or adapt one of the classical judicial statements of the law of judicial review, such as that which Lord Diplock advanced in the GCHQ case. On this approach, legislation might, for example, provide that judicial review lies on grounds such as legality, procedural fairness and rationality, and that courts can intervene by way of judicial review when such principles are not adhered to. This would amount to codification in a cosmetic sense only, but from the perspective of those who wish to see effective judicial review maintained as a means of upholding good governance and constitutional principle it would be an entirely anodyne and harmless reform. For precisely that reason, however, it is highly unlikely that this type of codification is what those who set the Review’s terms of reference had in mind.

What, then, of the ‘all-encompassing’ model? This would amount to a more serious attempt at codification, by seeking to set down in statute the grounds of judicial review in a meaningful amount of detail, rather than merely seeking refuge in very high-level principles. On the face of it, it might seem that the all-encompassing approach would be better suited to the implied aims concerning clarity and accessibility, on the ground that meaningfully detailed legislation would enable the concerned or interested citizen to inform herself appropriately about the law of judicial review without having to resort to such arcana as courts’ judgements or secondary materials.

However, even a moment’s thought demonstrates that any attempt to codify the law of judicial review in this way would be doomed to failure. If such an approach were to go meaningfully further than the ‘window-dressing’ model, the legislation would be required would likely be so lengthy, detailed and technical as to make it far from clear and accessible to the average individual. A further, and fundamental, difficulty is that many of the grounds of judicial review cannot be meaningfully understood and defined in a the sort of abstract way that codifying legislation would necessarily adopt, because they interact with — and fully acquire shape and meaning only in relation to — the statutory framework that defines the powers whose exercise is under review in any given case.

Ultimately, therefore, it is difficult to avoid concluding that codifying the grounds of judicial review would fail, either because the legislation would proceed at such a high level of abstraction as to be largely vacuous or because it would need to set out the grounds of review in so much detail as to thwart the achievement of the (claimed) accessibility objective. And, either way, the project would be doomed because the grounds of review cannot be understood in isolation from the myriad and diverse statutory contexts in which they operate.

In reality, however, it is extremely unlikely that either the window-dressing or the all-encompassing codification model reflects the agenda underlying the suggestion, advanced in the Review’s terms of reference, that the grounds of review might be codified. It is much more likely that the framers of the Review have in mind a third possibility — namely, a ‘restrictive’ model of codification. By this, I mean an approach to codification that deliberately sets out to narrow the grounds on which judicial review can occur. This might be attempted in a variety of ways. One possibility would be to attempt to state some existing grounds of review in terms that accord them a narrower meaning that they presently have. Another possibility would be to set out a purportedly exhaustive list of the grounds of review from which some existing grounds of review would be omitted. A third possibility would be to include within the codification legislation a meta-ouster clause — that is, an ouster clause not limited to shielding the exercise of particular statutory powers from review — that would provide that judicial review should not occur on certain grounds. There are doubtless other possibilities too. However, all of these approaches are united by an underlying strategy of codifying judicial review in order to constrain it in some way and to some extent.

The efficacy and constitutional implications of limitation-through-codification

Would a ‘restrictive’ model of codification produce the intended effect? And, in attempting to limit judicial review in this way, what constitutional implications might such an approach produce? The answers to these questions engage deeper issues about the constitutional foundations of judicial review. This is a matter on which constitutional scholars differ, sometimes quite sharply. However, such differences notwithstanding, there is broad consensus on two presently critical matters.

The first is that the grounds of judicial review amount to an expression of fundamental constitutional principles, including the rule of law and the separation of powers. As a result, judicial review, and the values that are upheld by it, lie close to, indeed within, the bedrock of the UK constitution. This means, among other things, that judicial review — and, by extension, the grounds of judicial review — are highly resistant to being displaced, not least because the courts rightly proceed on the basis that legislation should, wherever possible, be construed compatibly with fundamental principle.

Second, although views differ about whether and if so to what extent the grounds of judicial review should be characterised as common law principles, it is undeniable that at least some, and arguably a great deal, of the law of judicial review emanates from or sits in relationship with the process of statutory interpretation. As noted above, many grounds of judicial review, at least to some extent, fully take form and can be understood only when considered with reference to the particular statutory framework that gives rise to the power whose exercise is being reviewed: for instance, a requirement to act procedurally fairly will mean very different things in different (statutory) contexts. This means, in turn, that judicial review and the application of the grounds of review is, at least often, part and parcel of the process of statutory interpretation. This function is, at least according to some judges — including some members of the Supreme Court in Privacy International — a necessarily judicial one that is a product of the concept of parliamentary sovereignty itself, the curation of statute law by an independent judiciary capable of interpreting such law in a consistent and principled manner being a precondition of Parliament’s capacity to make ‘law’ in any meaningful sense.  

Where does this leave us when it comes to the scope for attempting to limit judicial review by codifying it? It means that the extent to which any attempt might succeed would necessarily turn upon the meaning accorded by courts to (one the one hand) the codifying legislation itself and (on the other hand) legislation conferring statutory powers whose exercise would continue, post-codification, to be subject to judicial review. Courts would rightly seek to read the codifying legislation in a way that would be consistent with fundamental constitutional principles which, among other things, require judicial review on the various grounds that are presently available. This means, for instance, that courts would be inclined to read the codifying legislation in a way that left judicial review intact as far as possible and in a manner that was consistent with the courts’ interpretive function. It is also virtually inevitable that the courts would decline to conceptualise codifying legislation as having replaced the existing law of judicial review with a new, statutorily-created version. It is much more likely that codifying legislation would be read as a supplement to or a gloss upon the existing law of judicial review, just as the Human Rights Act 1998 is understood to have left common law constitutional rights fully intact.

It would also remain necessary for courts to interpret individual statutory provisions conferring powers whose exercise fell for judicial review — and the courts could be expected to continue to discharge that inherent interpretive role consistently with fundamental constitutional principle, which, among other things, would mean reading into statutory powers such conditions and limitations as would be necessary to render their exercise consistent with the constitutional principles that underpin the grounds of judicial review. It is, of course, possible that the codifying legislation might have the effect of constraining the courts’ capacity to interpret individual provisions creating statutory powers in this way, but for the reasons set out above the courts would, to begin with, rightly be resistant to interpreting the codifying statute in such a way.

The upshot is that the interpretive nature of judicial review coupled with the fact that it serves as an instrument for the enforcement of fundamental constitutional principles introduces special considerations that would complicate any attempt at reform or codification. Reducing the point to its simplest form, the implicit error revealed by the Review’s terms of reference is the assumption that the law of judicial review can be changed or codified just as any other area of law can be. The reality, however, is more complex. That is not to say that the law in this area lies beyond the reach of legislators. Indeed, that is self-evidently not the case, given that Parliament has, on many occasions, legislated to regulate certain — most notably procedural — aspects of judicial review. But it would be mistaken, by extrapolating from the fact that Parliament has legislated in such ways, to conclude that the law of judicial review can be reformed by Parliament in just the same way as any other area of law.

The obvious retort to all of this might seem to be that since Parliament is sovereign it can do what it likes. However, even without going as far as questioning the sovereignty of Parliament — which some constitutional scholars and some judges do — such a retort can be seen to be simplistic. Bold judicial dicta notwithstanding, it remains highly unlikely that a court would (for example) respond to legislation seeking to limit judicial review by refusing to apply it on the ground of unconstitutionality. But in the ways set out above, such legislation — along with legislation creating powers that would continue to be subject to judicia review — would fall to be construed by courts in pursuit of their innate interpretive function and by reference to a set of fundamental constitutional principles of which parliamentary sovereignty is only one. It is in the alchemy of the interpretive process that the relationships between the rule of law, the separation of powers and the sovereignty of Parliament fall to be worked out, and it is through the outworking of those relationships that courts would determine the meaning and effects of legislation that sought to codify and restrict judicial review.

All of this means that while it would be naïve to assume that judges would reject such legislation out of hand, thereby nakedly challenging Parliament and the notion of parliamentary sovereignty, it would be equally naïve for the Government to assume that curtailing judicial review through codification would be a straightforward matter. Parliament might be sovereign, but it legislates within — and the sovereignty doctrine that ascribes legal force to its legislation falls to be understood by reference to — a framework of constitutional principle that incorporates but transcends the principle of parliamentary sovereignty. None of this means that the prospect of legislation seeking to curtail judicial review by restrictively codifying it should be met with equanimity by those who rightly regard judicial review as an essential constitutional safeguard. It does, however, mean that the effects of such legislation should not be taken for granted by those who might be inclined to propose it. It also means that the inherent value and deep roots of the constitutional principles that would be engaged by and resistant to a legislative assault upon judicial review ought to prompt its advocates to proceed, if at all, with great caution.