Dr Robert Craig is a Lecturer in Law at the University of Bristol. He specialises in Constitutional Law.
Last month the Judicial Review and Courts Act 2022 (‘JRCA’, or ‘the Act’) received royal assent.
This was not front-page news. But the JRCA actually makes two major changes that are startling in their strategic vision, purpose and effects – and perhaps rank it in structural importance with the Judicature Act 1873, passed 150 years ago.
It reflects the stated goal of Robert Buckland, the former Lord Chancellor, of challenging the standard model of judicial review, which he set out in a speech at Policy Exchange that repays careful reading.
Change 1) Ouster clause carving out a separate Upper Tribunal jurisdiction
The JRCA follows the recommendation of the heavyweight Independent Review of Administrative Law, chaired by Lord Faulks QC, to remove so-called ‘Cart’ judicial reviews, ostensibly for resource reasons.
If you’re not familiar, Cart JRs permitted errors of law by the Upper Tribunal to be corrected by the ordinary courts (High Court, Court of Appeal, and Supreme Court). The JRCA removes the supervisory jurisdiction of the ordinary courts over the Tribunals.
This might at first glance seem fantastically dry. But it’s actually the latest clash in a long-running dispute over some constitutional fundamentals.
The mechanism for removing the Tribunals from the jurisdiction of the ordinary courts is via an ‘ouster clause’. These clauses are highly contentious, precisely because they remove public bodies from the general supervision of the ordinary courts.
Removing executive bodies from judicial supervision has never yet been successfully mandated by Parliament. The JRCA, less controversially, removes the Upper Tribunal (a judicial body) from the jurisdiction of the ordinary courts.
This does, however, prove once and for all that the High Court is not a court of ‘unlimited jurisdiction’ (per LJ Laws in Cart at [51]) – although I have argued in a separate blog that it never was. (The number in square brackets is the paragraph of the linked judgment referred to.)
Indeed, the High Court is an entirely statutory body, with a wholly statutorily-conferred limited jurisdiction, invented by parliament in 1873. The only court of unlimited jurisdiction is the High Court of Parliament.
The most important effect of the change in the JRCA is to demolish the dogma that ‘common law’ is hegemonic. In truth, ‘common law’ in the narrow sense just means the collective decisions of the ordinary courts.
The JRCA carves out of this hegemony a new island, or possibly continent, of law via the Tribunal system. Crucially, this new body of law could deviate, perhaps substantially, from the narrow body of common law precedents.
This has far-reaching consequences.
English law historically is well used to the idea of competing, inconsistent, and incompatible jurisdictions. Until the Judicature Acts 1873-5, for example, the courts of Equity and the courts of King’s Bench (common law) had long-running turf wars until Parliament stepped in to merge and reconstitute the jurisdictions, while conferring primacy on Equity.
Parliament thus rooted the jurisdictional authority of the courts in statute thenceforth.
(Incidentally, Equity’s victory fatally undermines the entirely ahistorical and mistaken claim that the court of King’s Bench had, never mind has, a ‘general supervisory jurisdiction’ over other courts (per LJ Laws in Cart at [47]).)
The most important result of Parliament’s decision to reinstall separate jurisdictions is, ideally, to undermine what are sometimes known as ‘common law constitutionalists’. This cabal conflates common law in the narrow sense of judicial decisions with what might be called ‘Common Law’ as some kind of fundamental law.
By appealing to this mythical fundamental or ‘higher’ law, such activists have been trying for some time (periodically eliciting some worrying hints – e.g. Privacy at [144]) to tempt the courts into striking down Acts of Parliament – on the basis of these supposedly fundamental ‘Common Law’ limits.
This possibility may seem shocking to non-lawyers, and it would indeed be a fundamental breach of core norms of the constitution. And it could cause a significant political backlash from Westminster.
Part of the common law theology is the claim that the ‘rule of law’ requires that there be a single set of laws patrolled ultimately by the ordinary courts. Some judges have warned against this, pointing out that the rule of law is distinct from the rule of the courts (for example, Evans [154]).
The JRCA strikes a significant strategic blow against this undemocratic and damaging ‘Common Law’ narrative. By deliberately carving out a new Tribunal jurisdiction that could deviate from the law laid down by the ordinary courts, parliament has made clear that the ordinary courts do not have the last word on the law: Parliament does.
The ordinary courts are clearly now just one limited jurisdiction amongst others.
Other novel statutory jurisdictions may follow – indeed this Act is supposed to be the first of a series of reforms (on which see this paper by Richard Ekins).
What might be termed the ‘security’ commissions and tribunals (IPT, SIAC etc) could be carved out next and come under the jurisdiction of another novel body perhaps named, if one were being historically mischievous, the Security and Terrorism Appeal and Review (‘STAR’) Chamber. The JRCA ouster clause could become a template.
The crucial element is the deliberate undermining of claims that the ordinary courts have any general, supervisory or unlimited jurisdiction (as opposed to statutory appellate jurisdiction at the behest of parliament). The Act sends a strong message to the courts, following a series of recent controversial decisions, that activists who are urging further expansion of the courts’ traditional role should be resisted.
Nor would this necessarily be unwelcome – there are strong signs that the Supreme Court is very keen to mend fences in any event.
Change 2) Reform of judicial review remedies
The second major constitutional change brought about by the JRCA is that courts will now be able to suspend remedies and make them prospective (from the date of the judgment) rather than retrospective.
Superficially this can be seen as an attempt to reduce the potential for chaos when a previously functioning system is unexpectedly ruled ultra vires (literally: ‘unlawful’).
At a deeper level, however, this measure can also be seen as a further blow against the common law constitutionalist narrative.
As one very senior contributor pointed out at recent roundtables organised by the Ministry of Justice, the legal basis for ultra vires schemes is doubtful if they are not struck down ab initio (literally ‘from the beginning’). If they are not authorised by statute, what is the legal source of their (temporary) authority?
If the courts were to claim the power to treat such schemes as lawful under their own legal authority, that could provide deeply unwelcome grist to the imaginary fundamental ‘Common Law’ mill, because the temporary validity of the scheme would rest on judicial fiat.
This problem was acute and growing because some recent cases had seen courts beginning to institute suspensions before their decisions took effect.
This could potentially open the door to observers who could attempt to weaponise these examples to claim, wrongly, that the jurisdictional authority of the courts lies in some notional fundamental ‘Common Law’, rather than statute (specifically the Judicature Acts 1873-5).
The JRCA nips this problem in the bud. By making suspensions or prospective remedies statutorily authorised, the Act implicitly provides parliamentary authorisation for any ultra vires regimes for the period they are treated as valid. This seriously undermines claims that the courts are inventing and exercising a non-statutory jurisdiction in such situations.
In summary, therefore, JRCA is a welcome step by Parliament to peg back some slightly over excitable commentators who would wish to see the courts interfere further in the political realm based on some fictional, putative fundamental ‘Common Law’ and thereby challenge parliamentary sovereignty.
There is little evidence that the judiciary in reality want to do so, at least at present, but this Act helpfully makes Parliament’s view, to coin a phrase, crystal clear.
Dr Robert Craig is a Lecturer in Law at the University of Bristol. He specialises in Constitutional Law.
Last month the Judicial Review and Courts Act 2022 (‘JRCA’, or ‘the Act’) received royal assent.
This was not front-page news. But the JRCA actually makes two major changes that are startling in their strategic vision, purpose and effects – and perhaps rank it in structural importance with the Judicature Act 1873, passed 150 years ago.
It reflects the stated goal of Robert Buckland, the former Lord Chancellor, of challenging the standard model of judicial review, which he set out in a speech at Policy Exchange that repays careful reading.
Change 1) Ouster clause carving out a separate Upper Tribunal jurisdiction
The JRCA follows the recommendation of the heavyweight Independent Review of Administrative Law, chaired by Lord Faulks QC, to remove so-called ‘Cart’ judicial reviews, ostensibly for resource reasons.
If you’re not familiar, Cart JRs permitted errors of law by the Upper Tribunal to be corrected by the ordinary courts (High Court, Court of Appeal, and Supreme Court). The JRCA removes the supervisory jurisdiction of the ordinary courts over the Tribunals.
This might at first glance seem fantastically dry. But it’s actually the latest clash in a long-running dispute over some constitutional fundamentals.
The mechanism for removing the Tribunals from the jurisdiction of the ordinary courts is via an ‘ouster clause’. These clauses are highly contentious, precisely because they remove public bodies from the general supervision of the ordinary courts.
Removing executive bodies from judicial supervision has never yet been successfully mandated by Parliament. The JRCA, less controversially, removes the Upper Tribunal (a judicial body) from the jurisdiction of the ordinary courts.
This does, however, prove once and for all that the High Court is not a court of ‘unlimited jurisdiction’ (per LJ Laws in Cart at [51]) – although I have argued in a separate blog that it never was. (The number in square brackets is the paragraph of the linked judgment referred to.)
Indeed, the High Court is an entirely statutory body, with a wholly statutorily-conferred limited jurisdiction, invented by parliament in 1873. The only court of unlimited jurisdiction is the High Court of Parliament.
The most important effect of the change in the JRCA is to demolish the dogma that ‘common law’ is hegemonic. In truth, ‘common law’ in the narrow sense just means the collective decisions of the ordinary courts.
The JRCA carves out of this hegemony a new island, or possibly continent, of law via the Tribunal system. Crucially, this new body of law could deviate, perhaps substantially, from the narrow body of common law precedents.
This has far-reaching consequences.
English law historically is well used to the idea of competing, inconsistent, and incompatible jurisdictions. Until the Judicature Acts 1873-5, for example, the courts of Equity and the courts of King’s Bench (common law) had long-running turf wars until Parliament stepped in to merge and reconstitute the jurisdictions, while conferring primacy on Equity.
Parliament thus rooted the jurisdictional authority of the courts in statute thenceforth.
(Incidentally, Equity’s victory fatally undermines the entirely ahistorical and mistaken claim that the court of King’s Bench had, never mind has, a ‘general supervisory jurisdiction’ over other courts (per LJ Laws in Cart at [47]).)
The most important result of Parliament’s decision to reinstall separate jurisdictions is, ideally, to undermine what are sometimes known as ‘common law constitutionalists’. This cabal conflates common law in the narrow sense of judicial decisions with what might be called ‘Common Law’ as some kind of fundamental law.
By appealing to this mythical fundamental or ‘higher’ law, such activists have been trying for some time (periodically eliciting some worrying hints – e.g. Privacy at [144]) to tempt the courts into striking down Acts of Parliament – on the basis of these supposedly fundamental ‘Common Law’ limits.
This possibility may seem shocking to non-lawyers, and it would indeed be a fundamental breach of core norms of the constitution. And it could cause a significant political backlash from Westminster.
Part of the common law theology is the claim that the ‘rule of law’ requires that there be a single set of laws patrolled ultimately by the ordinary courts. Some judges have warned against this, pointing out that the rule of law is distinct from the rule of the courts (for example, Evans [154]).
The JRCA strikes a significant strategic blow against this undemocratic and damaging ‘Common Law’ narrative. By deliberately carving out a new Tribunal jurisdiction that could deviate from the law laid down by the ordinary courts, parliament has made clear that the ordinary courts do not have the last word on the law: Parliament does.
The ordinary courts are clearly now just one limited jurisdiction amongst others.
Other novel statutory jurisdictions may follow – indeed this Act is supposed to be the first of a series of reforms (on which see this paper by Richard Ekins).
What might be termed the ‘security’ commissions and tribunals (IPT, SIAC etc) could be carved out next and come under the jurisdiction of another novel body perhaps named, if one were being historically mischievous, the Security and Terrorism Appeal and Review (‘STAR’) Chamber. The JRCA ouster clause could become a template.
The crucial element is the deliberate undermining of claims that the ordinary courts have any general, supervisory or unlimited jurisdiction (as opposed to statutory appellate jurisdiction at the behest of parliament). The Act sends a strong message to the courts, following a series of recent controversial decisions, that activists who are urging further expansion of the courts’ traditional role should be resisted.
Nor would this necessarily be unwelcome – there are strong signs that the Supreme Court is very keen to mend fences in any event.
Change 2) Reform of judicial review remedies
The second major constitutional change brought about by the JRCA is that courts will now be able to suspend remedies and make them prospective (from the date of the judgment) rather than retrospective.
Superficially this can be seen as an attempt to reduce the potential for chaos when a previously functioning system is unexpectedly ruled ultra vires (literally: ‘unlawful’).
At a deeper level, however, this measure can also be seen as a further blow against the common law constitutionalist narrative.
As one very senior contributor pointed out at recent roundtables organised by the Ministry of Justice, the legal basis for ultra vires schemes is doubtful if they are not struck down ab initio (literally ‘from the beginning’). If they are not authorised by statute, what is the legal source of their (temporary) authority?
If the courts were to claim the power to treat such schemes as lawful under their own legal authority, that could provide deeply unwelcome grist to the imaginary fundamental ‘Common Law’ mill, because the temporary validity of the scheme would rest on judicial fiat.
This problem was acute and growing because some recent cases had seen courts beginning to institute suspensions before their decisions took effect.
This could potentially open the door to observers who could attempt to weaponise these examples to claim, wrongly, that the jurisdictional authority of the courts lies in some notional fundamental ‘Common Law’, rather than statute (specifically the Judicature Acts 1873-5).
The JRCA nips this problem in the bud. By making suspensions or prospective remedies statutorily authorised, the Act implicitly provides parliamentary authorisation for any ultra vires regimes for the period they are treated as valid. This seriously undermines claims that the courts are inventing and exercising a non-statutory jurisdiction in such situations.
In summary, therefore, JRCA is a welcome step by Parliament to peg back some slightly over excitable commentators who would wish to see the courts interfere further in the political realm based on some fictional, putative fundamental ‘Common Law’ and thereby challenge parliamentary sovereignty.
There is little evidence that the judiciary in reality want to do so, at least at present, but this Act helpfully makes Parliament’s view, to coin a phrase, crystal clear.