Judicial review reform III: Substantive review and the courts’ constitutional role

In the first and second posts in this series on the Report of the Independent Review of Administrative Law (IRAL) and the Government’s Response to it, I addressed questions surrounding the doctrine of nullity, potential changes to the effect of remedies and the Government’s wish to reinvigorate ouster clauses. All of those proposals are united by at least one common thread: namely, the policy aim of seeking to reduce or eliminate the legal consequences that arise when administrative action or secondary legislation is unlawful — whether by attenuating the remedial implications of a finding of unlawfulness, shielding unlawful administrative action from collateral challenge by denying its ab initio invalidity or immunising unlawful acts against challenge altogether by means of newly-effective ouster clauses.

In this post, I turn to a separate matter: one that is concerned not with reducing or removing the legal consequences that attend the unlawfulness of executive action, but with narrowing the category of executive action that, in the first place, is considered to be unlawful. One of the concerns the plainly underpinned the Government’s decision to set up the IRAL, and which comes through loud and clear in its Response to the IRAL Report, is that of ‘judicial overreach’. Comparing the approach taken to this matter by the IRAL in its Report and by the Government in its Response thereto is highly instructive.

The IRAL Report

On the question of judicial overreach, the IRAL Report advances two key, and eminently defensible, propositions. First, it acknowledges that questions about the appropriate level of judicial intervention are complex ones that do not admit, and have not admitted, of simplistic answers. In advancing this view, the IRAL Report rightly invokes the idea that the issues in play involve questions that are not binary in nature but which, rather, are questions of degree:

The standard of review that an exercise of public power is subjected to may … vary according to the nature and subject matter of the power. It has been accepted for 30 years that the courts should apply ‘anxious scrutiny’ to the question of whether a government minister acted in a Wednesbury unreasonable fashion where the minister’s decision impinged on fundamental human rights. Under this approach, the courts ask themselves whether a rational minister could have thought that his or her decision was proportionate given what was at stake, and find that the minister acted in a Wednesbury unreasonable fashion if the answer is no.

Second, the IRAL Report says the following about the how concerns regarding judicial overreach might most appropriately be resolved:

The most obvious solution to a potential problem of judicial overreach is judicial restraint. This solution involves the courts’ reaffirming the fundamental constitutional fact that it is not for them to pronounce on the wisdom of the exercise of public power; instead, they are to perform the quite different function of determining whether the legal limits on the exercise of public power have been exceeded. We would encourage the courts constantly to keep that  constitutional fact in mind and endorse the advice from Michael Fordham QC (as he then was) that “Judicial vigilance is needed under the rule of law but judicial restraint is as necessary under the separation of powers. In considering whether a public body has abused its powers, Courts must not abuse theirs.

This statement is telling — and important — for two reasons. It recognises that the resolution of complex issues concerning the intensity of judicial review invites commensurately subtle answers — answers that can be arrived at only by way of engaging with difficult, and potentially context-sensitive, questions about the respective roles that it is appropriate for the judicial and political branches to play in respect of given matters. In addition, the IRAL Report, in concluding that  any solutions to the potential problem of judicial overreach ‘must come from the courts’ rather than being legislatively imposed upon them, acknowledges that in this sphere, the judicial and political branches each have legitimate parts to play, and that neither has a monopoly of wisdom or constitutional authority when it comes to determining the appropriate extent of their respective roles.

The Government’s response

In relation to each of the two foregoing matters, a very different approach is in evidence in the Government’s Response to the IRAL Report. First, whereas the IRAL Report acknowledges the complexity of the questions that arise in this area, leading to its recognition that they need to be addressed through the inherently subtle lens afforded by the notion of the intensity of review, the Government’s analysis strikes a notably more binary tone. Indeed, this is front-and-centre, with the Lord Chancellor and Justice Secretary writing in his foreword to the Response:

The Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made. The reasoning of decision-makers has been replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament.

Here, the language of degree is edged out by that of categories. The courts’ proper role is ‘supervisory’, such that they have no business whatever with ‘merits’; the reasoning of decision-makers’ is of paramount importance and must not be supplanted by that of courts; and the world can neatly be divided into ‘moral’ and (by implication) ‘legal’ questions, judicial incursions into the former being inappropriate. The fundamental difficulty, however, is that the world is not as simple as this — meaning that any analysis that proceeds on such a basis will necessarily be wide of the mark. The reality, of course, is that judicial review has never conformed to the sort of ideologically pure paradigm that the Government’s analysis seeks, unconvincingly, to conjure into existence. Even issues that are classically regarded as legal in nature, such as those concerning what procedural fairness requires in given circumstances, inevitably raise questions that may, for example, be moral in nature (to what extent, if any, ought dignitarian regard for the individual be subjugated to administrative convenience?) or that may have polycentric (e.g. economic) implications.

Second, the subtext of the Government’s Response on this matter is one that sits uncomfortably with the idea, which is taken to be axiomatic in the IRAL Report, that the solution to any potential concern regarding judicial overreach must (as the IRAL Report put it) ‘come from the courts’. Indeed, the Government’s position more generally, by invoking a muscular conception of parliamentary sovereignty and the associated emphasis on political constitutionalism that that view implies, casts the courts in an inherently constitutionally dubious light. Thus, for instance, we are told that courts are the mere ‘servants of Parliament’, that the ‘the executive should be confident in being able to use the discretion given to it by Parliament’, that Parliament is the ‘primary decision-maker’, and that it is ‘ultimately for Parliament to decide how Judicial Review should operate, both in general and in relation to any particular power’. On this view, the courts, in exercise of their judicial review powers, are cast ultimately as interlopers that are to be tolerated only insofar as Parliament is prepared to allow.

This can be seen, for instance, in the Government’s comments regarding the principle of legality, whereby courts interpret legislation subject to constitutional rights and principles:

[T]he principle of legality, broadly construed, gives the courts a way to go beyond the usual constraints of substantive review by imposing their own sense of fairness onto statute and essentially interpreting it according to what, in their eyes, Parliament’s intentions should have been … The question is how to ensure that the doctrine of the ‘principle of legality’ remains within the appropriate bounds of Judicial Review, with Parliament being the ultimate decision-maker as to how powers should be exercised.

Viewed thus, the principle of legality and the relatively interventionist form of judicial review that its application is capable of triggering (as cases such as Evans and Miller II demonstrate), is transformed into something that is, at best, highly dubious. In particular, the view that the principle of legality reflects the outworking of the courts’ independent constitutional function, whereby it is right and proper for them to seek to give effect to legislation in a way that is respectful of fundamental constitutional values, is replaced by a view that castigates courts for illegitimately projecting their ‘own views’ onto legislation enacted by Parliament. Of course, if courts really are merely ‘servants of Parliament’, this critique acquires considerable force. But that underlying assumption itself reflects a partial and highly contestable understanding of the respective roles of the judicial and political branches.

None of this is to suggest that the courts should unquestioningly be treated as having carte blanche to develop the principle of legality and the approach to judicial review that goes along with it however they wish. For instance, the IRAL Report is undoubtedly right to highlight the difficulties that can arise due to the uncertain scope of the principle of legality, to call for further work in this area, and to underline the scope for extra-judicial, as well as judicial, contributions to that work. But that measured view is at odds with the more strident one that is readily discernible in the Government’s Response. Indeed, the Government’s critique of ‘judicial overreach’ in the context of substantive review is a microcosm of the broader view revealed in its Response to the IRAL Report, whereby the constitution is viewed through the prism of parliamentary sovereignty in a way that problematises and seeks to delegitimise competing, including judicial, centres of constitutional authority. In the next, and final, post in this series, I will question the appropriateness of that view and will consider what its wider implications might be.