Richard Ekins

It’s time to take back control from our judges

It’s time to take back control from our judges
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The Judicial Review and Courts Bill has its second reading today. Writing for the Guardian yesterday, David Davis MP denounced the government’s plans as ‘an obvious attempt to avoid accountability [and] to consolidate power’ which is ‘profoundly un-conservative’. He could not be more wrong. The Bill is a welcome first step in restoring the balance of our constitution, a balance put in doubt by a decades-long expansion of judicial power. If anything, parliament should go further and amend the Bill to make it a more effective means to restore the traditional constitution.

Judicial review, Mr Davis argues, is ‘a cornerstone of British democracy’, a ‘check on the balance of powers in our democracy’ by which ‘rule makers are held accountable by ordinary people’. He vows to ‘be at the forefront of any battle to protect this important legal tool’. Strong stuff, but this is all a bit confused. Judicial review is a vital part of our constitution, of course. The courts should correct public bodies that abuse their powers and act in excess of their jurisdiction. In this way, judicial review helps uphold the rule of law.

However, the rule of law does not require that every public action should be subject to judicial review, let alone review on every ground. Nor does the rule of law somehow entitle judges to supervise the legislative process or to act regardless of the statutes parliament enacts: this would substitute the rule of courts for the rule of law. As senior judges have noted, the reach and intensity of judicial review has expanded considerably in recent decades. Parliament is perfectly entitled to reform the changing law of judicial review, restating its traditional limits. In so doing, it acts to protect parliamentary sovereignty, responsible government and the rule of law.

The origins of the Bill lie in the government’s manifesto and these concerns cannot simply be smuggled off stage. It animated Lord Sumption’s 2019 Reith lectures. In that same year, in the latest round of litigation concerning the Chagos Islands, the High Court affirmed that judicial review is not and should not be politics by another means; the Court of Appeal declared likewise in one of the lesser Brexit cases. These were sound statements of principle, sometimes observed in the breach, which parliament should legislate to affirm.

What does the Bill actually do? Only its first two clauses concern judicial review. The first clause is about remedies, authorising courts to suspend an order quashing government action, if the court judges this necessary to prevent needless disruption. The second clause reverses an important Supreme Court judgment and protects certain decisions of the Upper Tribunal from judicial review. In the end, the Bill does not go far beyond the rather cautious recommendations made by the Independent Review of Administrative Law.

Mr Davis takes aim at the second clause, asserting that it would stop the courts from correcting ‘fundamental and dangerous errors of law’. He misses the point. The Upper Tribunal is a court and it is wildly disproportionate to subject its decisions to judicial review proceedings. In enacting an ouster clause to exclude judicial review in this context, parliament will be restoring the law that parliament intended to make in 2007 and will undo the Supreme Court’s 2011 decision to make new law.

It is true and important that the government conceives of this ouster clause as a possible model for other cases. But it is wrong to leap to the conclusion that a future government will strip courts of their jurisdiction in relation to employment disputes or social security. A future government would be mad to try – and a future parliament is unlikely to assent. However, it is and must always be open to a sovereign parliament to limit judicial review. It will be reasonable for parliament do so when it thinks that judicial review has wrongly extended beyond its traditional domain.

Take the Dissolution and Calling of Parliament Bill currently making its way through parliament. Clause 3 of that Bill responds to the Supreme Court’s prorogation judgment, and will protect the soon to be restored prerogative power of dissolving parliament from challenge in the courts. Mr Davis refers to the Supreme Court judgment which ended the prorogation, saying only that it ‘resulted in political difficulties’. This is a wholly inadequate analysis of the court’s lawless intervention in high politics. The Supreme Court made new law while denying it was doing any such thing, undermining the political constitution and the rule of law.

The irony of the attacks on the judicial review Bill is that it is clearly a modest measure, which largely aims to leave it to the courts to mend their ways. The Bill’s modesty may in fact be excessive. The risk is that parliament passes up an important opportunity to help restore the traditional limits of judicial review. While some lawyers (and others) will denounce any and every legislative response, senior judges, including the Lord Chief Justice of England and Wales, have repeatedly affirmed that it is proper for parliament to legislate to reverse the legal effect of particular judgments.

In a new paper for Policy Exchange’s Judicial Power Project, entitled How to Improve the Judicial Review and Courts Bill, I have set out a series of possible amendments to the Bill, many of which respond to key judgments in recent years. One set of amendments would limit or exclude the improper extension of judicial review in particular contexts. Another set would make general changes in response to other judgments that have put our constitutional arrangements in doubt. A final set would make limited procedural changes to judicial review proceedings.

If amended in some of these ways, the Bill would remain a carefully targeted, conservative intervention in the law of judicial review, rather than a root and branch reform. It would be quite inaccurate to say that it sacrifices the rule of law or individual liberty on the altar of power. In deliberating about the Bill, parliament has an opportunity to make it a more effective way to restore traditional limits on judicial power and so vindicate the rule of law and parliamentary government. Parliament should make the most of it.