Challenging the challenges

Judicial review is not meant to happen: officials make decisions because the law says they can, so the law only has a place in enforcing those decisions. Judicial review is there to restrain an official from acting outside his authority. The problem is how to determine the ends of authority, and with judges adding their own conditions on that authority as an excuse to interfere.

The judicial review procedure is not there to second-guess an administrative decision and it is not an appeal against a decision., but in the popular imagination judicial review is becoming just that, and the popular imagination has a tendency to coalesce into expectation, and expectation presses upon the law and affects a judge’s willingness to concede. A corrective is needed.

I like the old forms of writ for their exotic names; the Writ of Certiorari, to quash an action, a Mandamus to compel action, a Prohibition (less exotic) and the one we lost at some point, the Quo Warranto, asking “By what authority…?” They come from the days of petty courts and corporations that needed restraint when they exceeded their rights. Now renamed, those writs hover over the shoulder of every public body trying to get on with its job.

The principle is meant to be that decision-makers make decisions and judges only keep them within their authority – the judge does not rule on the wisdom or benevolence of a decision. I have since this post was first published contributed to a guide for this site, but it is a moving scene: every so often one judge will reassert firmly the principle of non-interference, then another judge will ignore that and blatantly step into the decision-maker’s chair.

When given an excuse to interfere, some judges will grasp that power for all it is worth, and through use and abuse, the precedent grows up for more intervention.

A big leap was taken in the GCHQ union case in 1986: here for the first time the House of Lords was willing to apply judicial review to an exercise of the Royal Prerogative, which is astounding: it would be quite within the purpose of judicial review to define the limits of the Royal Prerogative and to restrain an act that goes outside it (the Court of King’s Bench was doing that from King James’s time at least) but the Royal Prerogative is not a delegated power with defined purposes and preconditions – it is the remaining sovereign, arbitrary authority of the Crown – and so it cannot be judged on Wednesbury principles like some local council’s licensing function. The review in the CCHQ case failed, but it opened the door and blew a wide hole in the principles that are meant to justify the power of judicial review. We are seeing this in the Supreme Court this week.

The Supreme Court was created to be the final arbitrator on the applicable law at the highest level of commercial contract disputes and grave criminal appeals. At least half its workload at any given time though is wasted in challenges to administrative decisions. The number of asylum and immigration cases alone is staggering – these should never be judicial matters in the first place, let alone take up the time of the highest court in the land. It brings the judicial arm into a place it should not be and poisons expectations and the court’s approach.

To correct this drift? Parliament in principally to blame, from badly worded statutes, and so when there is a parliament again, not this pointless, zombie, parliament we have at present, then it could take a hand. All those Acts of Parliament which grant powers subject to worried conditions, provisos and procedures must be straightened out, which will be a long task. Better education of civil servants which draft the daft Bills would help too. The biggest impact could come from changing the laws on immigration and asylum, to grant absolute authority to the Home Secretary so that her decisions cannot be challenged: it would free the courts up at a stroke.

More pointedly, perhaps it needs a new Act of Parliament, as a sort of act of settlement in the question, to codify what Parliament means when powers are granted, and to codify the meaning of the Wednesbury rules (if they are to remain). It can put in writing the limits of the judge’s role, to match the austere limitation that judges have pronounced, and other have hitherto disregarded in the absence of black-and-white authority. Finally, it can set down what did not need to be said before; that the Royal Prerogative is the prerogative of The Queen and her ministers, not of the judges, and not something to which judges can add their own conditions and imagined purposes.

Parliament stands mercifully prorogued at present, as long as the Supreme Court does not interfere. It will be useless when it returns. A dissolution is the only hope for reform; as long as the courts do not try to interfere with a decision to dissolve too.

Interest rei publicae ut sit finis litium.

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Author: LittleHobb

Solitary, poore, nasty, brutish, and short

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