The Judicial Review and Courts Bill is in trouble; mauled by the Lords over half-understood principles. Proper consideration is needed of a constitutional issue, but the Lords’ objections are mistaken, as the rhetoric does not engage with the actual proposals.
The argument is one where one side demands the rule of law and that unlawful decisions can be challenged, while the other argues for the rule of law, and that unlawful decisions be open to challenge. Somewhere someone is missing that they are both on the same side. That, alas, is what counts for reasoned politics today, and has done for much of a century. We used to think better of the House of Lords, but since the Earls were driven out to transform the chamber into the House of Quangocrats, its qualities of sagacity have evaporated.
Certain lobbying groups have roused their followers to oppose the Bill by telling them that the Bill will allow the government to evade challenge: this is untrue and plain dishonesty. Not a line in the Bill excludes government action from challenge – this would appear to be outrage prepared in advance on the assumption that something very different would be proposed, or good, old-fashioned political mendacity packaged for conspiracy theorists.
Firstly, the Bill is more than the headline and mainly concerned with court procedures in practical terms. The Judicial Review element is just two clauses, labelled as Part 1. These two clauses have been the focus of the outrage.
Part 1 feeds on work by the Policy Exchange’s Judicial Power Project, which is to be commended. The Clauses do not encompass all the work of that project, and indeed the main conclusions it reached were that the law is essentially all right and it is rogue judges who bring it into disrepute. Latterly, judges in the Court of Appeal have been firmer in slapping down their less senior brethren. The number of wild judgments may be reduced.
Judges are not the main problem: a judge, however, keen on mischief, can only throw down a government action if the law leaves a hole through which it can fall, and Parliament fills its Act with holes. The principal reform in judicial review therefore would be a revolution in parliamentary draftsmanship.
Back to those two clauses, Clause 1 adds new judicial review remedies, and Clause 2 ends ‘Cart‘ appeals. The ‘Cart‘ rule is named after a Supreme Court decision but it is an appropriate name as it allows the High Court to drive a cart and horses though the finality of the Upper Tribunal’s decisions. If the Upper Tribunal were to make a mad order outside its jurisdiction, say locking someone up or judging on something outside the scope of the tribunal system, then that should be challengeable. If the challenge is just that a decision is unpalatable, with a claim that it might fail a narrow Wednesbury test, that is very different. The Supreme Court shot itself in the foot with their ruling in Cart, as it ended up clogged up with petty tribunal appeals for which the Upper Tribunal is meant to be the final decision-maker. The wheels must be taken off Cart.
Clause 1 is the main novelty. For those unfamiliar with the principles of judicial review, it is essentially that the powers of any official, council or lesser court are limited to those explicitly granted by law, and if they purport to do something beyond that power, an ultra vires act, then the court can step in to declare the act void; to quash it. A decision is either valid or invalid, so a court will either dismiss a challenge or quash the purported decision, declaring it a nullity from first to last. That is the legal principle. Clause 1 of the current Bill seeks to introduce a grey area, requiring the High Court to consider just suspending a decision.
The idea of a suspended decision sounds bizarre in the context of the legal principle: if an action was invalid then that is that. The Law Society raised its objection on this ground. Practicality bites though: this is not the Jacobean Age, and impugned acts are not the overreach of an arrogating tyrant. Instead, decisions likely to be challenged will be so for petty procedural reasons.
Say a council resolves to paint yellow lines on a road: if this is challenged on the basis that the council has no such power, or it is a private road, or it is a conservation area where the law forbids such lines, then the decision is dead in the water and must be quashed unconditionally. Mostly though, it is simply that a council officer has failed to advertise it in time or to record every layer of bureaucratic paperwork laid down as a precondition: if the latter then it a slip which can be remedied. Quashing the decision sends it right back to the start of the mille-feuilles of procedural demands, and may require that those half-painted yellow lines be scrubbed up, when really the Council just needs to get its paperwork in order and it can get on with the job it is empowered to do. I would say that in those circumstances quashing the decision opposes the rule of law: it frustrates a legal function. The proposal in Clause 1 is to allow the Queen’s Bench Division to suspend an inchoate act or impose a condition, to allow the authority go back and get it right, and then to exercise its authority.
I would say that a suspended or conditional quashing order should only be justified if the failing is a remediable one. Many are.
The real guilty party in these cases is not the court or the council, but Parliament for making the rules so complicated that mistakes are made.
Another objection heard is that the government wish to take it upon themselves to overturn court decisions they dislike. That is also a dishonest objection: no such proposal is found in the Judicial Review and Courts Bill. The objectors on this ground are thinking of another proposal, that each year Parliament could pass an Interpretation Act to amend the law where a court has interpreted it in an unexpected way. It is hard to see the principle of this objection – Parliament makes and unmakes the laws, not lawyers who think they know better. That is why we have the rule of law, not the rule of lawyers.
Parliament is sovereign and if it messed up the wording of its own Acts, Parliament needs to clear that mess up. It will be busy, for the statute book is very badly written.
- Judicial Review: a guide
- Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes (Thomas Hobbes)
- A start to fixing judicial review
- Unreasonable Judicial Review
- Wednesbury reverse will not overturn the Cherry / Miller decision
- The Rule of Lawyers
- 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