Legislative Scrutiny: Judicial Review and Courts Bill Contents

---

Chapter 1: Introduction

The Judicial Review and Courts Bill 2021–22

1.The Government introduced the Judicial Review and Courts Bill to the House of Commons on 21 July 2021.1 Part 1 of the Bill makes changes to judicial review, with a primary focus on England and Wales but with effects for Northern Ireland and Scotland. Part 2 of the Bill covers a wide range of court and tribunal reforms. This report is concerned with Part 1 of the Bill and is timed to inform the Report stage of the Bill in the House of Commons and proceedings in the House of Lords.

2.Judicial review claims ask the courts to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function. The High Court of England and Wales and the Court of Session in Scotland have a supervisory jurisdiction over the administrative decisions of ministers of state, local authorities and others exercising public functions. This means that part of their role is to check the lawfulness of administrative decisions—holding public authorities to account. As such, judicial review is a crucial component of the rule of law, which is, in turn, crucial to enforcing rights. As the preamble to the Universal Declaration on Human Rights states, it is “essential, if man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.2

3.Under the Human Rights Act 1998 (the HRA) it is unlawful for a public body to act incompatibly with the rights guaranteed by the European Convention on Human Rights (ECHR), unless required to do so by an Act of Parliament. Judicial Review, in allowing people to legally challenge the decisions and actions of public authorities for compliance with the HRA, makes our human rights enforceable. Any reforms that would affect access to judicial review or the remedies available could have implications for the efficacy of the HRA and for compliance with Article 13 ECHR. Article 13 provides a right to an effective remedy for a breach of Convention rights. It is not a right with which public authorities are expressly obliged to comply under the HRA, because the HRA itself is designed to provide an effective remedy for human rights violations. It is nevertheless binding on the UK as a matter of international law.

Judicial review and claims of judicial activism

4.The Bill comes after much debate as to whether judicial review claims have led judges to overstep their boundaries and interfere in political decision-making. Lord Chancellor and Justice Secretary Dominic Raab has said:

[…] we quite rightly have judicial checks on the executive. But it’s got to be done in a constructive and sensible way which allows the government to deliver the projects that it’s tasked and mandated by Parliament to do… [ensuring that] taxpayers’ money is not being squandered because projects are being harpooned.3

5.The Attorney General Suella Braverman, has argued that judicial review “has strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts”. She expressed her view that:

[…] it is crucially important that we neither permit, facilitate nor encourage judicial review to be used as a political tool by those who have already lost the arguments.4

The Attorney General made specific reference to a number of Supreme Court judgments: the cases of Adams,5 Miller 1,6 Miller 2 and Cherry and others,7 Evans8 and Privacy International.9

Box 1: Case summaries

R v Adams [2020] UKSC 19: In this case from Northern Ireland, the Supreme Court considered the Carltona principle (whereby a power to be exercised by a Secretary of State may be exercised on their behalf by an official within their department). The Supreme Court did not accept that the Carltona principle always applied unless removed by express statutory language. The Court found that, in the context of a very serious decision whether to deprive someone of their liberty, potentially indefinitely, it was reasonable to assume that Parliament had intended that decision to be taken by the Secretary of State personally, when that is what the legislation clearly provided. Miller v Secretary of State for Exiting the EU (Miller (No.1)) [2017] UKSC 5: This claim saw the Supreme Court hold that Article 50 of the Treaty on European Union (which begins the process of withdrawal from the EU) could not be invoked by the Government using prerogative powers. Such a major constitutional change required Parliamentary legislation. Miller v Prime Minister (Miller (No.2)); Cherry and others v Advocate General for Scotland [2019] UKSC 41: This claim concerned the lawfulness of the Prime Minister’s advice to the Queen to prorogue Parliament in the prelude to withdrawal from the EU. The Supreme Court held, unanimously, that the matter was justiciable (i.e. something that the Court was entitled to rule upon) and that the advice was unlawful. R (Evans) v Attorney General [2015] UKSC 21: The Attorney General used a statutory power to issue a certificate overriding an Upper Tribunal decision that communications between the Prince of Wales and government departments should be disclosed. The Supreme Court accepted that the certificate could be judicially reviewed and found it to be unlawful, on the basis that the Attorney General had failed to establish that he had reasonable grounds for considering that disclosure was not due. Privacy International v Investigatory Powers Tribunal [2019] UKSC 22: The Supreme Court considered a statutory provision purporting to exclude the jurisdiction of the High Court to review the decisions of the Investigatory Powers Tribunal. The Court emphasised that the court’s supervisory jurisdiction could only be excluded by clear and explicit words. It held that the statute did not exclude judicial review of errors of law because a decision vitiated by error of law was no decision at all.

6.Professor Richard Ekins, head of the Judicial Power Project at Policy Exchange, summed up the position of those that have been critical of the courts in his response to Privacy International:

It is not for courts to decide whether to uphold Parliament’s authoritative choice, nor is it for them to design a regime of judicial supervision of other public bodies that flouts such authoritative choices […] No court in this country has authority to choose not to uphold a statutory provision, including a provision ousting the jurisdiction of the courts. The doctrine of parliamentary sovereignty establishes the validity of all Acts of Parliament and disables the courts from invalidating them.10

7.Others believe that judges are very careful not to interfere in political decision making. In the course of our inquiry into the Government’s Independent Review of the Human Rights Act we heard evidence from witnesses, including two former Presidents of the Supreme Court and a former Attorney General, who considered the balance of power between Parliament and the Courts to be right and suggested that the courts made decisions in controversial or ‘political’ areas with caution rather than enthusiasm.11 Their views were consistent with those of Lord Reed, President of the Supreme Court, who in 2020 told the House of Lords Constitution Committee that:

Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.12

8.When questioned on whether judicial review on human rights grounds has resulted in the judiciary making political decisions, Professor Alison Young told us:

Just because you are taking a decision in the law that has political consequences, that does not mean that you are taking a political decision. I would draw your attention to various ways in which the courts try to make sure that they do not take political decisions. Particularly when we look at human rights cases, we see courts applying a test of proportionality to make sure, when we are balancing rights decisions, that the reasons for restricting a right do not outweigh the reasons for protecting that right, so we are balancing protecting the right against restricting it…When they perform these balancing tests, they apply deference—a wonderful legal term—or give weight to the Executive…I do think that the courts are extremely careful to make sure that they do not cross that line.13

The Independent Review of Administrative Law

9.The Government established an Independent Review of Administrative Law in July 2020, chaired by the non-affiliated Peer and former Minister of State for Justice, Lord Faulks QC, to consider options for reform to the process of judicial review.14 We made a submission to the review, having taken evidence in October 2020 from a panel of witnesses including lawyers, an academic, and a former Supreme Court Judge. Our submission highlighted the importance of judicial review as a mechanism of enforcing rights:

The importance of judicial review as a means of enforcing rights does not lie only in the landmark judgments on matters of constitutional principle, but in its use as a systematic means of ensuring that administrative decisions, which impact on people’s everyday lives, are taken on a lawful basis... As Polly Glynn, Partner at the law firm Deighton Pierce Glynn and founder of the ‘PAP Project’ told us, judicial review is not about providing compensation after failures have happened, but about getting things right in the first place15

10.The Independent Review published its report in March 2021, and recommended:

• Reversing the Supreme Court’s decision in the case of R (Cart) v Upper Tribunal.16 This would make Upper Tribunal refusals of permission to appeal a decision made by the First-tier Tribunal no longer subject to judicial review.
• Introducing suspended quashing orders (SQOs). This would allow the courts to give public bodies a certain amount of time to correct an unlawful act or omission instead of immediately striking it down.17

11.We took evidence from Lord Faulks following the IRAL’s report. He told us that the Review had not found the need for more substantive reform:

Inevitably, cases that go to the Supreme Court, or even the Court of Appeal, will be those where there are more than respectable arguments on both sides. So despite having a number of cases drawn to our attention and examining them closely, we did not think that there was something so badly wrong with judicial review that we should start again. It is a well-established method of testing the legality of actions, and any decision to do something about it radically would, we think, be wrong and potentially contrary to the rule of law.18

12.The Government launched a public consultation in response to the report. They agreed with the “recommendations and the reasoning behind them”, but put forward additional proposals for public consultation, including “legislating to clarify the effect of ouster clauses,” and “legislating to introduce remedies which are of prospective effect only.”19 However, only the latter was included in the Bill.

13.The Government has also established the Independent Human Rights Act Review (IHRAR). Although the IRAL and IHRAR Reviews are separate, they are clearly interrelated. As we commented in our Report on the Government’s Human Rights Act Review, “judicial review is the key method by which the acts and decisions of public authorities, including government, can be challenged on human rights grounds under the HRA.”20 We await the outcome of IHRAR.

The legislation

14.The Government has stated that the proposed reforms to judicial review contained within the Judicial Review and Courts Bill will ensure that “the Government and public authorities are subject to the law, apply the intent of Parliament, and protect individuals’ rights.”21 According to the Explanatory Notes, the Bill will:

• “Give the Courts a new power to suspend the effects of Quashing Orders for a period of time in certain circumstances.
• Give the Courts a new power to provide prospective-only Quashing Orders. A non-exhaustive list of matters to which the Court must have regard when deciding whether to exercise either new power is also set out.
• Create a broad presumption for the Courts to use the new variations of Quashing Orders where it appears to the court that they would, as a matter of substance, offer adequate redress in relation to the relevant defect, unless there is a good reason not to do so.
• Remove Cart Judicial Reviews via an ouster clause. This will remove a person’s ability to judicially review a decision of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal.”22

The proposals for quashing orders will be the focus of Chapter 2. Chapters 3 and 4 will focus on Cart and ouster clauses.