Photographie en contreplongée de Londres

Following the judgments of the UK Supreme Court in Miller No I on leaving the EU ([2017] UKSC 5) and No 2 on prorogation of Parliament ([2019] UKSC 41) the Johnson government is pursuing its 2019 manifesto pledge to ‘protect our democracy’ and the relationship between the government, parliament and the courts.

Two ‘independent’ panels have been appointed to examine judicial review (JR) and the operation of the Human Rights Act (HRA). The report of the panel examining judicial review has been published and the government has responded to this by setting in motion a further consultation on JR: https://www.gov.uk/government/consultations/judicial-review-reform for both documents.

In the UK, JR is the fail-safe legal device when there are no other rights of appeal or legal challenge available. In England and Wales it is a process created and developed incrementally through the common law i.e., judicially determined law, with some statutory accretions. In the UK, JR is a basic realisation of the rule of law: government and governors must act within their legal limits. The legal limits are set by Parliament in sovereign legislation which is interpreted by the courts using common law methodology, and in the common law.

The Prime Minister, who described the results of the Miller cases, which the government lost,  as ‘perverse’ sees a problem with JR. JR has its role in protecting the individual against an abusive government acting unlawfully. But for too many years, opponents claim, JR has drifted increasingly into merits review of political decisions, expanded over-generously the common law bases of judicial review and generally allowed the judicial arena to be used to upset political decisions by those who have lost in the political arena – law is resorted to when the case in politics is lost, they argue. JR has become ‘politics by another means’ a phenomenon of which the courts have been aware and have frequently warned against encouraging.

JR has developed significantly under the influence of the European Convention on Human Rights, incorporated into UK law by the HRA, and under the influence of EU law. The UK completed its departure from the EU on 31 December 2020 but EU legal influence in the UK is likely to endure for some considerable time (P. Birkinshaw European Public Law: The Achievement and the Challenge of Brexit (2020)). The locus classicus of the grounds of JR in English law given by Lord Diplock in 1984 - illegality, irrationality and procedural impropriety, adding the possibility of future adoption of proportionality (GCHQ case [1984] UKHL 9) - have been judicially, and carefully, developed.

The grounds over time have become more substantive e.g. review of fact and not simply a point of law, systematic unfairness and not simply a breach of natural justice in a judicial or ‘quasi-judicial forum’, legitimate expectation, proportionality in certain circumstances, breaching constitutional rights, failure to publish adequate policy-related materials, consultation rights, lack of transparency and increasing use of irrationality in, e.g., the content of reasons. The HRA has also modified the constitutional distribution of powers. Arguable allegations that an individual’s ECHR rights have been infringed will make the claim justiciable even if traditionally the subject would be treated as a preserve of the executive.

The subjects in the terms of reference for the review ranged from the appropriate constitutional sphere of JR, the limits of justiciability, what subjects are appropriate for courts to review, the bases of jurisdiction (the competence to make a decision in question tied in with the amenability of public law decisions to judicial review by the courts (para 1.1)), grounds of review and remedies, and possible codification of grounds for judicial review principles by legislation and ‘a democratic process’.

The panel reported within a period of six months – hopelessly curtailed for such a wide range of subject matter. There were 238 submissions of evidence, mainly from lawyers, and evidence from government departments. The latter had been refused under Freedom of Information Act requests and is published in a synopsis.

Basically, the panel recommended no significant structural or constitutional change to JR and recommended two specific changes: a reversal of one Supreme Court judgment (Cart [2011] UKSC 28) and the introduction of prospective quashing orders. At present quashing orders operate retrospectively making orders or decisions void ab initio. This would have particular advantage in high-profile constitutional cases where it would be desirable for the courts ‘explicitly to acknowledge the supremacy of Parliament in resolving disagreements between the courts and the executive over the proper use of public power’ (3.64). The panel also made some sensible suggestions in relation to procedures.

To the panel’s credit it was not prepared to remove the advances made by judicial review in almost 60 years by reverting to an individual rights’ basis for JR. Such a move would wipe away the public’s interest in good government and good governance. Do we not all have an interest in lawful government, protecting Parliament’s proper role as in Miller Nos 1 and 2?

The response from the Lord Chancellor commenced with tendentious interpretations of what the panel had reported. A drift into a more substantive form of review for almost sixty years (common law process) was summed up as an interference with the merits of political decision-making and the government 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’ [Para 2]. This is a crude statement both of the panel’s comments and what has in fact occurred.

The Lord Chancellor was interested in reforms beyond those recommended by the panel. The independent panel had not given him what he wanted so let’s try again seems to be the message. Specifically, he wanted to look more roundly at ouster clauses, i.e. clauses which seek to protect decisions/orders against JR, to ‘clarify’ the law on nullity and to investigate prospective remedies beyond suspended quashing orders. It is quite clear he has ‘broader reforms’ in mind (para 6). ‘This does not mean we think there needs to be a radical restructuring of JR at this point’ (32).  But note the warning that if JR continued on its present road ‘The Government would then need to consider whether proposing legislation on these and other broader constitutional questions was needed’ (46).

What he proposes is a ‘clarification’ of the law of nullity so that only an absence of power (incompetence) renders a decsion null and void ab initio. Abuse of power, irrationality and other illegality, no matter how ‘egregious’, will render a decision voidable and subject to a prospective remedy. The void/voidable distinction was basically eradicated from our law in 1968 [Anisminic [1968] UKHL 6). All legal errors made a decision void. The Lord Chancellor’s suggestations for reform set back the clock to pre-Anisminic days where the law was hopelessly confused and confusing. What Anisminic did was emphasise that in the interpretation of the law, the courts are supreme. He wishes to make it clear Parliament is supreme and can keep the courts out!

The courts have gone too far, he believes. ‘Justice needs to be restored’. Thoughts are prompted of the duty on the Lord Chancellor under the Constitutional Reform Act 2005 and the Chancellor’s existing constitutional role in relation to the rule of law (s.1) and the duty of the Chancellor to uphold and defend the ‘continued independence of the judiciary’ (s.3). He seems to confuse reviewing a discretion because of illegality with a full-frontal attack on the merits of a political decision.

Not only is containing the province of JR under review. The government has also raised the possibility of replacing the UK Supreme Court (the decider of the Miller cases) with a new court and structure – an Upper Court of Appeal has been mooted. Lord Reed, President of the Supreme Court, has called this, were it to occur, ‘an act of spite’ (https://committees.parliament.uk/oralevidence/1923/pdf/).

[1] See Lord Reed’s, President of the UK Supreme Court, evidence to the Panel at Judicial Review: Proposals for Reform - Ministry of Justice - Citizen Space The phrasing of politics by another means is taken from case law: R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) at [326] and R (Wilson) v The Prime Minister [2019] EWCA Civic 304 at [56].

[2] R (Lord Carlile) v Secretary of State for the Home Department [2015] AC 945, [28]-[29]. This was particularly striking in R (Gentle) v The Prime Minister [2008] UKHL 20 concerning Art 2 ECHR on the right to life and the alleged waging of an illegal war in Iraq. Applications in both cases were unsuccessful.

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