If the lofty bien-pensants of the legal profession are aghast, it must be a good thing. The Conservative and Unionist Manifesto for 2019 says:
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.
That is exactly what I have been saying for months.
The promised “Constitution, Democracy & Rights Commission” could be a Yeatsian monster, but done well and carefully selected (did I leave my card?) it will be valuable. It heralds not a wholesale rewriting of the constitution (Conservatives, after all) but a review of whether it all fits together the way we thought it did. Basically, it is to overturn the Cherry/Miller case – and it needs overturning. I have commented previously on how to do that.
It is interesting too that the same paragraph drops the old commitment to repeal the Human Rights Act (the subject of another article, I feel coming on). Now says “update the Human Rights Act”, and administrative law. The threat of Corbyn and McDonnell looms dark over the nation, and anything which rebukes their desire to seize private funds and property, and to punish where there is no crime, is valuable. The European Convention on Human Rights may be a tottery bulwark against Communism, but it is something.
On judicial review specifically, action taken to reform it should codify the rules so that they are clear. This should strengthen the procedure, and improve public respect for it. Judges are accused of being political when they cass and annul administrative decisions, but if the rules are clear and clearly adhered to, they will have better protection from those accusations.
Look at the Wednesbury rules. These govern the propriety or otherwise of administrative decisions and so these rules are the basis of judicial review, but they are entirely judge-made rules. As they are invented by a judge, another may reinvent them, and as long as the rules are open to flexible interpretation, they empower judges where judges are not meant to be. The rules are well-meant – they are intended to ensure that powers are exercised for the purpose for which they were given and not for a corrupt purpose. They are valuable in that they obviate the need for every Act of Parliament to specify limits and provisos on the powers it grants. It is uncomfortable though that the courts have had to invent these rules, because powers are given by Parliament and in principle no one else should be able to countermand their exercise. Those rules to imply limits on powers granted should have been made by Parliament, and they should be in the forthcoming review.
However, there is another wrinkle. State powers are not the only ones governed by the Wednesbury rules. There are private powers too, like the powers that a trust deed may give to trustees entrusting them with authority to manage or sell the assets entrusted to them, and these private powers also use the language of discretion and decision. Just as property may be entrusted to the care of a trustee, so public powers are entrusted to officials or councils. It is a healthy sign if “trust” is understood as a common concept, howsoever high the trustee may be, or think he is, and governed by the same common rules.
Another court decision has just been published, in which the High Court determined that even in a private contract where it gives one party discretion in his or her actions, that discretion is subject to the Wednesbury rules. This is not quite the first time that a judge has explicitly invoked Wednesbury over private powers; it has appeared hesitantly on occasion since the Socimer case in 2004 but seems to be becoming established, not as a rule to be implied into every contract but as a rule to interpret words such as “reasonably” and “discretion”. That does accord with sense and principle.
In any consolidation, restatement or change to the Wednesbury rules for administrative decisions, Parliament might want to see if they are also inadvertently leaning on private property too. The concept that they all rely on the common concept of entrusted authority is a comforting one.
- Judicial Review: a guide
- Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes (Thomas Hobbes)
- Supreme Tangle
- The rule of lawyers
- A Powers and Bodies Act
- Murmuring the judges:
- Wednesbury reform will not reverse the Cherry / Miller decision
- The Rule of Law by Tom Bingham (former senior Lord of Appeal)
- Trials of the State: Law and the Decline of Politics by Jonathan Sumption (former Justice of the Supreme Court)
- The Secret Barrister: Stories of the Law and How It’s Broken
- Constitutional & Administrative Law by Neil Parpworth
- Scots Law for Journalists by Rosalind McInnes
- The Madness of Crowds: Gender, Race and Identity by Douglas Murray
Beyond Brexit: Towards a British Constitution by Vernon Bogdanor