One step forward, two steps back? Judicial review and the Government’s amendments to the Internal Market Bill

In an earlier post and in evidence to the House of Lords Constitution Committee I have already drawn attention to concerns about the attempt in the United Kingdom Internal Market Bill to oust judicial review of regulations made under clauses 42 and 43 — the provisions that allow Ministers to breach the UK’s international obligations under the EU Withdrawal Agreement and the Northern Ireland Protocol. I have argued that attempting to oust judicial review in this way gives serious grounds for concern from a rule-of-law perspective, given that the availability of independent judicial oversight of ministerial action is a central aspect of that key constitutional principle.

Existing amendments

Since the original version of the Bill was published, some concessions in respect of judicial review have already been made. The latest version of the Bill contains a new clause 45(3) which provides that the default time limits for judicial review may not be extended in respect of ‘relevant claims’, while a new clause 45(6) defines ‘relevant claims’ as claims brought for the purpose of ‘questioning the validity or lawfulness of regulations under sections 42(1) or 43(1)’. This appears to contemplate that, contrary to the impression conveyed by the original version of the Bill, judicial review of regulations made under clauses 42 and 43 will be possible, as does the ECHR Memorandum published earlier this week, in paragraph 46 of which the Government acknowledges that clause 45 does ‘not operate to oust the judicial review jurisdiction of the courts’.

Nevertheless, it remains far from clear how these amendments to clause 45 are intended to interact with pre-existing parts of it. In particular, clause 45(1) provides that regulations made under clauses 42 and 43 ‘have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent’. How is this to be reconciled with the fact that clause 45 as amended now contemplates the possibility of judicial review? One possibility is that through these amendments the Government is seeking to facilitate judicial review claims that could result in nothing more than purely Pyrrhic victories, in which the most a court would be able to do would be to agree with a claimant that regulations breached this or that ground of review but nevertheless remained effective thanks to clause 45(1).

That, however, would be utterly perverse. The better view is that the concessions in the amended version of clause 45 strengthen the case for the approach to these matters that I advocated in my earlier post: namely, that regulations made in breach of the principles of judicial review should not be regarded as having been ‘made under’ clauses 42 and 43 in the first place. This would be in line with the standard approach to the interpretation of legislation granting ministerial powers, which are normally read as excluding authority to do things that would breach the judicial review principles. Once we approach matters in this way, clause 45(1) ceases to bite — because it only offers protection to regulations that were ‘made under’, as distinct from regulations made beyond the powers granted by, clauses 42 and 43.

Proposed amendments

The Government has now published further proposed amendments (amendments 12–15 on p 14 of this document). The effect of the proposed amendments would be as follows:

  • Amendment 12: In making regulations under clauses 42 and 43, Ministers would be exempt from their usual duty under section 6(1) of the Human Rights Act 1998 (HRA) to act in accordance with ECHR rights.
  • Amendment 13: Regulations made under clauses 42 and 43 would have to be treated for the purpose of the HRA as if they were ‘primary legislation’ for the purpose of the HRA.
  • Amendment 14: ECHR rights would be exempt from the definition of ‘relevant law’ in clause 45.
  • Amendment 15: Courts and tribunal would be precluded from questioning the lawfulness or validity of regulations made under clauses 42 and 43 other than in relation to ‘relevant claims’ (meaning judicial review claims). This is presumably intended to prevent collateral, as distinct from direct, challenges to regulations made under clauses 42 and 43.

Taken together, it appears that these amendments seek produce an extremely odd outcome. The exclusion of ECHR rights from the definition of ‘relevant law’ in clause 45 means that the provision in clause 45(1) — that regulations made under clauses 42 and 43 have effect notwithstanding incompatibility with relevant law — would no longer apply in respect of Convention rights. On its own, this would unambiguously reinstate the possibility of judicial review of relevant regulations on HRA grounds. However, amendment 13 appears to be designed to ensure that any such judicial review challenges would be of limited practical utility. By requiring regulations made under clauses 42 and 43 to be treated as if they were primary legislation for HRA purposes, such regulations would, on this view, be shielded from the possibility of being struck down if they were found to breach Convention rights. Instead, a court would only be able to issue a declaration of incompatibility under section 4 of the HRA.

Amendment 13 thus appears to be an attempt to cancel out the effect that amendment 14 would otherwise have had: while the effect of amendment 14 is that ECHR-incompatible regulations would no longer have effect notwithstanding that incompatibility, they would nevertheless have to be treated as if they were primary legislation for HRA purposes, thereby removing the possibility of strike down. Moreover, the possibility of collateral challenge (that is, challenge in non-judicial review proceedings, in which the availability of otherwise of strike-down powers would be irrelevant) would also fall away thanks to amendment 15 — a point that assumes particular pertinence given that the time limits for judicial review will, thanks to clause 45(3), be unusually strict.

Not so fast

The proposed amendments thus appear to open up the possibility in principle of HRA claims in respect of regulations made under clauses 42 and 43 while undermining the practical utility of such challenges. In this way, the amendments’ apparent facilitation of human rights challenges turns out to be a mere smoke-and-mirrors exercise. But how would a court interpret the legislation if amended in this way? In particular, is there any scope for interpreting it so as to facilitate meaningful human rights challenges to regulations made under the Bill? Arguably there is.

Although amendment 12 relieves Ministers of their obligation under section 6(1) of the HRA to act compatibly with the Convention rights, it does not displace the courts’ obligation under section 3(1) of the HRA to read primary and subordinate legislation, as far as possible, compatibly with those rights. From this, two critical consequences follow. First, regulations made under clauses 42 and 43 would themselves have to be read, if possible, compatibly with Convention rights — although of course Ministers, freed from their section 6(1) duty, might choose to make regulations that were unambiguously incompatible. Second, however, the courts’ section 3(1) interpretive obligation would also still apply to clauses 42 and 43 themselves (as distinct from regulations made, or purportedly made, thereunder). There is nothing in clauses 42 or 43 that authorises Ministers, explicitly or implicitly, to make regulations that breach Convention rights, meaning that it would be perfectly natural for a court to conclude that regulations made in breach of such rights were made not under, but beyond the powers granted by, clauses 42 and 43.

On this approach, a court would remain free, the proposed amendments notwithstanding, to strike down ECHR-incompatible regulations. Why? Because amendment 13, which requires regulations to be treated as if they were primary legislation for HRA purposes, applies only to ‘regulations under’ clauses 42 and 43. Regulations made in breach of Convention rights would, however, be made outwith, not under, clauses 42 and 43, once those provisions were interpreted in line with the courts’ interpretive duty under section 3(1) of the HRA. Would a court be bold enough to adopt this approach? It is hard to say. The argument is, in my view, certainly tenable, although I also recognise that it would leave amendment 13 with little, if any, effect. On the other hand, a statement under section 19 of the HRA has been made by the Government in respect of the Bill — now supplemented by an ECHR Memorandum that makes only passing reference to clauses 42 and 43 — attesting to its perceived compatibility with the Convention rights. Against that background, it would be odd, to say the least, if the Government were to attempt to argue that clauses 42 and 43 authorised Ministers to breach those rights.

Taking stock

Where does this leave us? It leaves us with a Bill that clearly authorises Ministers to break international law; that attempts to limit the extent to which the HRA applies to regulations made under it; that limits the availability of judicial review by imposing stricter-than-usual time limits; that enhances the effect of those shorter time limits by apparently excluding collateral challenge; that, while now apparently contemplating the possibility of judicial review on regular grounds, does so in a way that appears to attempt to (but may ultimately fail to) render judicial review victories Pyrrhic; and that continues to provide that regulations made under the Bill will have legal effect notwithstanding incompatibility with (among other things) ‘any rule of international or domestic law whatsoever’. While some aspects of the Bill may be rendered less constitutionally damaging by concessions made through some of the amendments and by the possibility of suitably robust judicial interpretation, the departures made by the Bill from basic constitutional standards remains as telling as it is concerning.

It is worth concluding by mounting an anticipatory defence of some of the arguments that I have advanced in this post. To some, the arguments above concerning ways in which the worst constitutional excesses of the Bill might be interpretively addressed might seem to verge on the sophistic. But ultimately a simple, yet crucial, principle is in play: that if law-makers wishes to disturb fundamental values and arrangements, they must say so in unambiguously clear terms, expending any necessary political capital in the course of doing so. It is at least arguable that the proposed amendments to the Internal Market Bill fail to cross that threshold of unambiguous clarity — and it follows that courts would be fully entitled, and constitutionally obliged, to interpret the Bill compatibly with relevant constitutional principles.

I am very grateful to Graeme Cowie of the House of Commons Library and Jack Williams of Monckton Chambers for their comments on an earlier draft of this post and for valuable discussion of the issues addressed in it. The views expressed in this post are entirely my own and should not be taken to reflect the views of those who commented on an earlier draft or the views of the organisations with which they are associated.