Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
Reforming the law of judicial review is not for the faint-hearted. Whatever legislation is proposed in this field is almost certain to be misrepresented and unfairly attacked. In introducing the Judicial Review and Courts Bill to Parliament yesterday, the Government has taken an important first step towards restoring the balance of the constitution. The Bill’s provisions are technical but the subject matter could hardly be more important. It warrants close scrutiny and is likely to get it.
The first two clauses of the Bill reverse two controversial Supreme Court judgments. The first clause empowers courts to suspend the effect of an order quashing government action, if they judge this to be necessary to prevent needless disruption.
The second rules out challenge to decisions of the Upper Tribunal by way of judicial review proceedings, save in highly limited circumstances. In this way, the Bill picks up and develops the modest recommendations made by the Independent Review of Administrative Law (IRAL). In a keynote speech at Policy Exchange yesterday afternoon, the Lord Chancellor explained the thinking behind the Bill, focusing in particular on the second clause.
— Policy Exchange (@Policy_Exchange) July 21, 2021
The Lord Chancellor faced some criticism for going beyond IRAL in legislative proposals he put out for consultation in March this year. That criticism was misconceived – it would have been constitutionally irresponsible for him not to consider more robust measures. One group of public lawyers even accused the Lord Chancellor of having unlawfully misrepresented IRAL’s findings, such that the consultation as a whole might be open to judicial challenge.
But the courts should not supervise how the Government interprets the IRAL report and the Government must be free to develop its own proposals for legislation and then to put them before Parliament. The Bill having now been introduced, it seems unlikely that these lawyers will ever attempt to test their outlandish claims in court, which would have been an object lesson indeed.
In the end, the Lord Chancellor does not seem to have gone much beyond IRAL’s rather limited recommendations. The rationale for caution appears to be a small c-conservative disposition, an Oakeshottian enthusiasm for incremental change, with the Lord Chancellor, like IRAL, looking primarily to the courts to exercise self-discipline. As he said in The Telegraph a few days ago, there are indeed some encouraging signs that the Supreme Court, now led by Lord Reed rather than Lady Hale, may be moving towards a more disciplined approach.
But will it last? In the discussion after the speech, Michael Howard (former Leader of the Opposition) drily asked whether the recent change might not have been unrelated to the looming prospect of legislation. It was a good question.
Lasting constitutional change requires a change in judicial attitudes. Judges should be encouraged to revive traditional limits on judicial power that uphold the political constitution and the rule of law. The Lord Chancellor made clear the importance of judicial culture and the limits of legislation as a means to change culture. His heavyweight Policy Exchange speech set out to engage the courts intellectually about their constitutional role, making a principled case for limits.
It was a mistake, he said, to dismiss arguments for reform on the grounds either that they must in the end aim to unleash executive power or that they rest only on a handful of borderline cases. Taking the 2015 Evans judgment as one example, he quoted two former Law Lords’s endorsement of Policy Exchange’s critique of the judgment as flatly inconsistent with Parliament’s intentions: nothing borderline about the case, which remains a worrying instance of malpractice.
His main focus was on the conceptual problems that had arisen in the wake of the landmark judgment of Anisminic in 1968. Much misunderstood, the case had given rise to an unfortunate practice of the courts construing ouster clauses ever more narrowly and Parliament looking at ever more general clauses – not a healthy dynamic.
The rationale for the ouster clause in the new Bill, the Lord Chancellor argued, was partly that it would disrupt this dynamic, setting out a clear, constitutionally unimpeachable ouster of judicial review (with minor exceptions), thus restoring a limited jurisdiction to the Upper Tribunal, within which it was free to act. This is a good legislative proposal, chiming with New Zealand legislative practice, and will be especially significant if it helps the courts recognise Parliament may decide that not every error is theirs to correct.
The Lord Chancellor also pointed out a number of other problematic developments in judicial review. They include the scope of the judicial power to supervise the exercise of discretion (developments in so-called Wednesbury review, named after the pivotal 1947 case), the risk that courts might introduce a general ground of proportionality review (going beyond the express, limited legislative imprimatur for such review in the context of the Human Rights Act 1998), and the misuse of “the principle of legality” in some recent cases (undermining executive discretion and Parliament’s will).
These were excellent points, well made, which chime with proposals for reform that Policy Exchange’s Judicial Power Project has repeatedly made.
The question that remains is why the Bill does not include measures targeting these excesses. Perhaps for the Lord Chancellor these are reforms to be considered another day. Or perhaps they will be introduced in the course of the Bill’s passage through Parliament, whether by the Government or backbenchers.
There is much to be said for incremental legislative reform, for a presumption against legislating unless clearly necessary, but one must also take care that too much caution does not tip over into a failure to act boldly when required.