Richard Ekins: The Government’s judicial review legislation is welcome, but could go even further

22 Jul

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.

Reforming the law of judicial review is not for the faint-hearted. Whatever legislation is proposed in this field is almost certain to be misrepresented and unfairly attacked. In introducing the Judicial Review and Courts Bill to Parliament yesterday, the Government has taken an important first step towards restoring the balance of the constitution. The Bill’s provisions are technical but the subject matter could hardly be more important. It warrants close scrutiny and is likely to get it.

The first two clauses of the Bill reverse two controversial Supreme Court judgments. The first clause empowers courts to suspend the effect of an order quashing government action, if they judge this to be necessary to prevent needless disruption.

The second rules out challenge to decisions of the Upper Tribunal by way of judicial review proceedings, save in highly limited circumstances. In this way, the Bill picks up and develops the modest recommendations made by the Independent Review of Administrative Law (IRAL). In a keynote speech at Policy Exchange yesterday afternoon, the Lord Chancellor explained the thinking behind the Bill, focusing in particular on the second clause.

The Lord Chancellor faced some criticism for going beyond IRAL in legislative proposals he put out for consultation in March this year. That criticism was misconceived – it would have been constitutionally irresponsible for him not to consider more robust measures. One group of public lawyers even accused the Lord Chancellor of having unlawfully misrepresented IRAL’s findings, such that the consultation as a whole might be open to judicial challenge.

But the courts should not supervise how the Government interprets the IRAL report and the Government must be free to develop its own proposals for legislation and then to put them before Parliament. The Bill having now been introduced, it seems unlikely that these lawyers will ever attempt to test their outlandish claims in court, which would have been an object lesson indeed.

In the end, the Lord Chancellor does not seem to have gone much beyond IRAL’s rather limited recommendations. The rationale for caution appears to be a small c-conservative disposition, an Oakeshottian enthusiasm for incremental change, with the Lord Chancellor, like IRAL, looking primarily to the courts to exercise self-discipline. As he said in The Telegraph a few days ago, there are indeed some encouraging signs that the Supreme Court, now led by Lord Reed rather than Lady Hale, may be moving towards a more disciplined approach.

But will it last? In the discussion after the speech, Michael Howard (former Leader of the Opposition) drily asked whether the recent change might not have been unrelated to the looming prospect of legislation. It was a good question.

Lasting constitutional change requires a change in judicial attitudes. Judges should be encouraged to revive traditional limits on judicial power that uphold the political constitution and the rule of law. The Lord Chancellor made clear the importance of judicial culture and the limits of legislation as a means to change culture. His heavyweight Policy Exchange speech set out to engage the courts intellectually about their constitutional role, making a principled case for limits.

It was a mistake, he said, to dismiss arguments for reform on the grounds either that they must in the end aim to unleash executive power or that they rest only on a handful of borderline cases. Taking the 2015 Evans judgment as one example, he quoted two former Law Lords’s endorsement of Policy Exchange’s critique of the judgment as flatly inconsistent with Parliament’s intentions: nothing borderline about the case, which remains a worrying instance of malpractice.

His main focus was on the conceptual problems that had arisen in the wake of the landmark judgment of Anisminic in 1968. Much misunderstood, the case had given rise to an unfortunate practice of the courts construing ouster clauses ever more narrowly and Parliament looking at ever more general clauses – not a healthy dynamic.

The rationale for the ouster clause in the new Bill, the Lord Chancellor argued, was partly that it would disrupt this dynamic, setting out a clear, constitutionally unimpeachable ouster of judicial review (with minor exceptions), thus restoring a limited jurisdiction to the Upper Tribunal, within which it was free to act. This is a good legislative proposal, chiming with New Zealand legislative practice, and will be especially significant if it helps the courts recognise Parliament may decide that not every error is theirs to correct.

The Lord Chancellor also pointed out a number of other problematic developments in judicial review. They include the scope of the judicial power to supervise the exercise of discretion (developments in so-called Wednesbury review, named after the pivotal 1947 case), the risk that courts might introduce a general ground of proportionality review (going beyond the express, limited legislative imprimatur for such review in the context of the Human Rights Act 1998), and the misuse of “the principle of legality” in some recent cases (undermining executive discretion and Parliament’s will).

These were excellent points, well made, which chime with proposals for reform that Policy Exchange’s Judicial Power Project has repeatedly made.

The question that remains is why the Bill does not include measures targeting these excesses. Perhaps for the Lord Chancellor these are reforms to be considered another day. Or perhaps they will be introduced in the course of the Bill’s passage through Parliament, whether by the Government or backbenchers.

There is much to be said for incremental legislative reform, for a presumption against legislating unless clearly necessary, but one must also take care that too much caution does not tip over into a failure to act boldly when required.

Richard Ekins: The repeal of the Fix-term Parliaments Act is essential for restoring faith in our democracy

6 Jul

Professor Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

For a certain type of critic, the Government’s constitutional reform agenda is authoritarian populism in action, contemptuous of the rule of law and parliamentary democracy alike.

The riposte is that many academic lawyers or political barristers seem rather keen on tempting courts to depart from the law in order to discipline an unruly Parliament or people – not much respect for the rule of law or democracy there. In limiting the prospects for political litigation, the Government and Parliament can help vindicate the rule of law and the integrity of parliamentary democracy.

The more fair-minded critic of the Government’s agenda sees that its aim is to restore the traditional political constitution, but goes on to question whether this would be a desirable change or even whether it is possible in view of how the world has changed.

That is, is it wise to unwind recent innovations and is it feasible for legislation to reinstate the constitution as it stood before these changes? These are good questions for parliamentarians to ask about proposed legislation.

The Queen’s Speech promised legislation to restore the balance of power between executive, legislature and courts. It remains unclear exactly what form that legislation will take and thus whether it will prove an effective means to help reverse the rise of judicial power.

The worry may be that the legislation does not go far enough, leaving the problem largely unresolved, rather than that it works too radical a change. However, another of the Government’s legislative proposals is rather more advanced, prompting questions now about whether it is warranted or will work.

The Dissolution and Calling of Parliament Bill, which has its second reading in the House of Commons today, will repeal the Fixed-term Parliaments Act 2011. Repeal should not be, but may prove to be, controversial.

The 2011 Act is an unloved statute. Both major parties contested the last general election promising to repeal it. Repeal is necessary because the Act proved dangerous in the last Parliament and indeed was very nearly disastrous.

In preventing dissolution, the Act made it possible for a cross-party coalition of MPs to maintain a government in office but not in power, refusing formally to withdraw confidence and thus trigger an election, but denying that government the capacity to govern.

The Supreme Court’s prorogation judgment made a bad crisis worse, denying the Government an option to provoke withdrawal of confidence and making it easier for a gaggle of parliamentarians to govern without taking responsibility.

If the Liberal Democrats and the Scottish National Party had not calculated that an early election was to their electoral advantage, the constitutional impasse could have continued for months or even years longer, with the country practically ungovernable.

Parliament has a responsibility to avoid a repeat of this constitutional debacle. The Bill now before the House helps to achieve this, per clause 2, by restoring Her Majesty’s prerogative power to dissolve Parliament as if the Fixed-term Parliaments Act had never been enacted.

Some academic lawyers argue that it is impossible to revive a prerogative power and that if the Bill is enacted the power to dissolve Parliament must be a statutory power, which will invite judicial review. The argument is fallacious, for a sovereign Parliament can certainly legislate to restore the law as it stood before its prior legislative act, provided that it makes its intention clear, as clause 2 does.

However, if the Bill were simply to restore the prerogative, as if the 2011 Act had never been enacted, the risk would be that political opponents of an early election would invite the courts to quash a dissolution, on similar grounds to those asserted in the prorogation judgment.

They would argue before the Supreme Court that the Government had wrongly dissolved Parliament for political advantage or for no obviously good reason and that dissolution had cut short parliamentary accountability and made it impossible for Parliament to enact legislation. The argument should fail because it is not for the courts to police the timing of elections. But the same argument succeeded in the prorogation judgment and its logic clearly extends to the prerogative of dissolution.

It has been clear for some time, as Policy Exchange has argued in a series of articles and reports, that legislation to repeal the 2011 Act needs also to reverse the Supreme Court’s judgment, protecting the prerogative of dissolution from judicial review.

Clause 3 goes some way towards this end providing in strong terms that no court may question the exercise or purported exercise of the powers referred to in clause 2 or the limit or extent of those powers. Predictably, some critics have argued that this is an unconstitutional clause, that it ushers in lawless government and unreasonably disarms the courts from intervening in extremis.

On the contrary, as I argued in evidence to the Joint Committee on the Fixed-term Parliaments Act, the fears about clause 3’s application are illusory. The restored prerogative of dissolution will help avoid constitutional impasse. In ruling out judicial review, clause 3 does no more than restate the law as it clearly was until the Supreme Court made new law, without admitting it, in the prorogation judgment.

The Independent Review of Administrative Law has recognised the merits of clause 3, which affirms traditional limits on judicial review rather than somehow constituting a novel, dangerous exemption from judicial oversight. The clause has to be framed in strong terms if it is to prove effective, for courts read legislation that seems to limit judicial review narrowly.

Some critics of clause 3 have even suggested that the courts might revive their overheated 2019 dicta, abandoning parliamentary sovereignty and quashing Parliament’s choice that dissolution shall not be subject to judicial review.

This seems an odd hill on which to choose to die. It is scarcely a fundamental of our constitution that courts should decide on the timing of elections and it seems very unlikely that the Supreme Court, led by Lord Reed rather than Lady Hale, would accept this argument.

The courts have no power to quash legislation preventing judicial review of a dissolution. However, future litigation challenging a dissolution, and thus an early election, would aim to evade the legislation, not least by targeting the steps leading up to Her Majesty’s order, including ministerial advice.

Clause 3 should be reframed to specify that a court may not question any (purported) act of the Crown relating to the dissolution of Parliament or any ministerial advice, or other procedural steps, relating to such an act. The clause might also usefully be supplemented by specifying that Article 9 of the Bill of Rights 1689 covers all acts of the Crown relating to prorogation and dissolution, and all ministerial advice to Her Majesty in relation to such action.

The Bill could also provide that the Supreme Court’s prorogation judgment and the judgment of the Scottish court on appeal in that case have no authority and cannot be relied upon in any UK court, which would restore the constitutionally sound judgments at first instance.

No one should lament the repeal of the Fixed-term Parliaments Act. In repealing the Act, Parliament has to address the law the Supreme Court invented in its prorogation judgment. Clause 3 of the Bill now before the House goes some way towards this end but should go further.