Tuesday, 4 August 2020

Be concerned: be very concerned ~ a review of Judicial Review

The 1986 David Cronenberg film "The Fly" contained the line - "Be afraid: be very afraid."  A scientist was working on "teleportation" and started to turn into an insect. He pleaded with one of the characters, "Don't be afraid." The reply was, "Be afraid: be very afraid."

Panel on judicial review:

Last week I wrote about the emergence of government plans regarding the 2019 manifesto commitment to set up a Constitution, Democracy and Rights Commission within the first year of a Conservative government. Although it is not yet fully clear, the
idea of an overarching Commission appears to have been abandoned and, on 31 July, the government announced an "independent" panel to examine judicial review. The panel will be chaired by Lord Edward Faulks QC- see UK Government Press Release 31 July 2020 

Government motivation:

The motivation behind creating the panel can be found in the Conservative Party manifesto paragraph 48 which said -

"After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will 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. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy and Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates."

Although this smacks of Conservative Party irritation with judges it should not be thought that such irritation is necessarily confined to that Party. As Professor Mark Elliott points out - The Judicial Review Review - I: The Reform Agenda and its potential scope - Tony Blair sought to remove from judicial review certain decisions related to asylum and immigration."

Nonetheless, it must be the case that the present government is hoping that the panel will recommend far-reaching changes placing severe limitations on the ability, via judicial review, of the courts to keep governmental activity within the law.

Independence?

Whether the panel will be seen as truly independent of the government is a moot point given that the chair is a former Conservative Minister having served as Minister of State for Justice between December 2013 and July 2016. Faulks is the current Chairman of the Independent Press Standards Organisation (IPSO). His views about judicial review are already on record having argued in favour of the UK leaving the Council of Europe and repealing the Human Rights Act 1998 - Conservative Home 26 April 2017. He also criticised the Miller 2/Cherry decision of the Supreme Court (The Prorogation Case) stating that the court interfered in 'the stuff of politics' and not law - Conservative Home 7 February 2020. I wrote about the Miller 2 case HERE and HERE.

The other panel members are Professor Carol Harlow QC (Emeritus Professor of Law at LSE) , Vikram Sachdeva QC (Chair of the Constitutional and Administrative Law Bar Association, and also of the Court of Protection Bar Association), Professor Alan Page (Professor of Public Law Dundee University), Celina Colquhoun and Nick McBride (Fellow of Pembroke College, Cambridge). Their CVs are set out in the government's press release (or via the links provided here).

Appearance is important and the panel should not only be independent but be seen to be. However, this is a strong panel with some notable public lawyers in its membership. It will be judged by its interpretation of the wide-ranging terms of reference, by the way it approaches its work and, of course, by its final report.

It is likely that government will proceed with implementation of any final report. If legislation is required then they will bring a Bill to Parliament and claim their manifesto commitment to reforming this area. The Salisbury Convention will be pleaded to overcome any House of Lords objections.

Terms of Reference:

Terms of Reference for the Independent Review of Administrative Law (PDF, 124 KB, 2 pages)

The TORs have 4 headings which are reproduced here. They should be read with the notes in the link just provided.

The Panel is asked to examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the government. It should bear in mind how the legitimate interest of the citizen being able to challenge the lawfulness of executive acton trhough the courts can be properly balanced with the role of the executive to govern effectively under the law. It should cosider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified. The review should consider in particular:


1.Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.



2.Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.



3.Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.



4.Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.



Judicial review is a complex legal process and, unless legally-aided, is beyond the means of the vast majority of citizens although, sometimes, "crowd-funding" has assisted litigants. Proceedings are brought in the High Court and require the permission of a judge to proceed.  The subject-matter of judicial review varies enormously but cases have embraced points of law of major importance including, as we have seen since 2016, the role of Parliament in the constitutional arrangements of the UK.

It appears that the independent panel will consider the position in all the UK jurisdictions even though justice is a devolved matter to Scotland and Northern Ireland - see Institute for Government.

It is perhaps in the very nature of executive power that it continually seeks to remove restrictions on its own freedom to act but that is a form of "teleportation" to Ministerial autocracy. Ever since the 17th century, our common law has sought to avoid that situation.  If you are not afraid then please - Be concerned: be very concerned.

4 August 2020 

Further reading:

Link added 11 August

Professor Mark Elliott - Public Law for Everyone - The Judicial Review Review II: Codifying Judicial Review - Clarification or Evisceration?

Link added 30 August


Professor Mark Elliott - Public Law for Everyone - The judicial Review Review III

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