A start to fixing judicial review

A very encouraging government response in the review of judicial review suggests that the system will be made to work better. It is still the start of the process.

The Law Society fell over themselves to find something to object to, which they would have done irrespective of the outcome: in fact the government’s paper is everything the Law Society could have wanted.

Some of the problems found in the current judicial review process are set out in the paper, but only some. The main reforms proposed are encouraging, as a start, and on their own they would make the system work better for everyone, not to stop judicial review of administrative decisions but if anything to make it a remedy more available for genuine cases, while providing a mechanism for remedying decision-makers’ faults. It is not a wholesale reform, but it sets the tone.

The headline points are short. The first of them seems very niche: reversing the ruling in Cart. That (and I had not heard of it either) was a decision allowing parties to challenge the Upper Tribunal if it does give them leave to appeal. It was pointed out that the Upper Tribunal is a senior judicial body that was never meant to be amenable to judicial review in this way and those appeals are the biggest single type of judicial review; 779 a year on average, with a miniscule success rate. It discredits the system, ties up judges in pointless work and wastes resources to no benefit.

The second-biggest set of appeals is one highlighted here before, namely immigration challenges. While this is not covered in the paper, eliminating those challenges by giving the Home Secretary complete discretion to do her job would knock out about as many cases again.

The second reform is interesting in terms of legal philosophy; the classical conception of judicial intervention would not countenance it, but modern conditions are far from the original conception. The classical formulation is that a decision made beyond authority is a complete nullity from the beginning, and therefore the court’s only role is to declare it so. In modern practice, decisions are very rarely quashed for being wholly outside the decision-maker’s powers, but for procedural inadequacy, such as failure to consult in the way laid down in a regulation, if that is a condition of action. In such a case, the court might in future be empowered to suspend the decision so as to give the errant decision-maker a chance to put right the procedural flaws. The challenge then is to allow that latitude to genuine correctable oversights and not extend it to actual exceeding of authority.

(The example of the latter given in the paper is if Parliament were to create a tribunal empowered to hear only tax cases but the tribunal started handing out murder convictions. That sounds wild, but it is exactly the sort of thing that used to happen back in the day, right up to the Revolution of 1688, and caused the Court of King’s Bench to issue many a writ of certiorari against lesser courts.)

A third string to the government’s paper is another one which has been highlighted here: the High Court’s blatant disregard of ouster clauses. Here the Law Society become vocal: “We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government, is, and must remain answerable to the law – just like the rest of us” – but that is a dishonest reading of the paper. Ouster clauses are rare, and there is no suggestion that they would become more common. Where they are needed to give finality to decisions, Parliament orders it, and to disregard the plain words of an Act of Parliament is the very antithesis of the rule of law: it is Parliament which makes the law.

If ousters become commonplace, then there would be an objection, but that is not suggested. What the paper actually discusses, if not in so many words, is “How to we stop judges from using sophistry to ignore the plain words of an Act of Parliament whenever they want?”

The narrative to the report, aside from the actual recommendations, is of as much interest in setting the tone. The golden thread is the rule of law. That is also the ideal championed by those cynical of the government’s motives.

It is right that Labour and the LibDems and the Law Society should be sceptical. It is right that they should voice suspicion of the government’s move. A government is not to be trusted with the delimitation of its own powers. Parliament is the trustee of that restraint. Care must be taken of a government looking at the limits of its powers, but in this case the writers of the report have trodden carefully.

The rule of law is here accepted, and whatever right and proper suspicions are expressed by the Opposition or the Law Society, when it comes down to it, the Conservative benches in the Commons have more respect for the restraint of government power than may be found opposite, simply by ideology.

One word mysteriously missing from the whole paper is “Wednesbury”. The Wednesbury principle is the foundation stone of modern jurisprudence on judicial review. It is placed in fact in the paper, not by the name ‘Wednesbury’ but as a reminder that basis of the modern rules is not to empower judges but to reflect the intentions of Parliament:

“while the standard grounds of Judicial Review are default conditions that Parliament intends to apply to the exercise of any power, these are just defaults and Parliament is completely free to add to or remove from them in specific cases.”

The actual rules in question have been discussed before. The originals have shrunk in the imagination to one: reasonableness. That word is open to misinterpretation, often deliberately. The meaning of “reasonableness” will be the next article on this subject.

To go back to the paper, it refers to ‘the tendency in the contemporary debate to see terms such as “the Rule of Law” as coterminous with the application of a range of moral and normative values’ and observes, correctly, that:

“there is a significant difference between defining the Rule of Law as the idea that the powers granted by Parliament or through the prerogative should be enforced by the courts (or another body) according to Parliament’s intent, and the idea that the courts should apply as a matter of course another source of authority such as their own concept of fundamental rights”

That is the fundamental trespass that activist judges can make. Judicial review is there to restrain officials from exceeding their lawful jurisdiction. It is not based on idea that judges are all-wise and ministers and officials are foolish so a judge would make a decision better.

There must be limits to ministers’ and officials’ powers, or freedom can be extinguished, and the courts will enforce those limits. However, the law is not just about limits: it is about actual powers granted, and they are granted for the benefit of the public. For a judge to invalidate a power actually given, because he has other ideas, that is to disregard a command of the law, and thus is a contempt for the rule of law.

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Author: LittleHobb

Solitary, poore, nasty, brutish, and short

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