Here’s a riddle wrapped up in a paradox: could judges using the power of judicial review strike down David Cameron’s attempts to curb the use of judicial review?
The British Prime Minister has complained at people exercising their right to hold the executive to account. He wants to “reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting”.
Now let us remind ourselves of the chilling threat issued by Baron Steyn, of Swafield in the County of Norfolk. In R (Jackson) v Attorney General (House of Lords case 2006) he said on the supremacy of Parliament:
“The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”
He is saying that if Parliament sought to abolish judicial review, courts would have to defy Parliament even though Parliament is sovereign. The rationale for his position is that there exists in Britain the rule of law. You know the one: the rule that says the Government is subject to the law, just like everyone else. The one the Government, and particularly the Prime Minister, David Cameron, keeps forgetting.
Or perhaps they never actually learned it – they are only politicians, after all. Why would they understand the terms and conditions upon which they are employed?
‘The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny’ – Baroness Hale
Mr Justice Simon Brown in R v HM the Queen in Council, ex parte Vijayatunga 1988 put it thus: “Judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law.”
As legal academic Ian Loveland notes in his superior text book on Constitutional Law: “common law principles are the implied terms of the government process and that Parliament is generally considered to have ‘contracted in’ to these limits on executive autonomy’. But that’s not how Cameron sees it (see his view of the Sharon Shoesmith case). Basically his position might be characterised thus: judges are unelected, hence unaccountable; Governments are elected, and hence do not need to be accountable (except at the ballot box).
Judicial review is the natural outcrop of the rule of law: Parliament passes the laws and judges can review whether public bodies, including the Government, have been abiding by those laws, in particular whether their administrative decisions have been arrived at lawfully. Judges do not strike down legislation (though they may declare it incompatible with the European Convention on Human Rights); they simply offer remedies if public authorities are going beyond their legal powers or operating unfairly or irrationally in exercising their powers.
But, back to Steyn. He seemed to suggest that judges would and did reserve the right to strike down or defy legislation if it was so oppressive that it destroyed the foundations of our constitution. If Parliament legislated to abolish judicial review it would be, in effect, abolishing the rule of law. Courts could not allow that to happen.
Baroness Hale backed Steyn’s view in the same case, saying: “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.”
The comments by both Hale and Steyn were purely in passing and were soon slapped down by Lord Bingham, the man who wrested the “rule of law” brand from AV Dicey and made it his own. In his famous Commemoration Oration of 2007 he said: “I cannot for my part accept that my colleagues’ observations are correct … The judges did not by themselves establish the principle [of parliamentary sovereignty] and they cannot, by themselves, change it.”
He goes on to say: “The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges. A constitution should reflect the will of a clear majority of the people, and a constitutional change of the kind here contemplated should be made in accordance with that will or not at all. As it was put by a Member of Parliament in 1621: ‘the judges are judges of the law, not of the Parliament. God forbid the state of the kingdom should ever come under the sentence of a judge’.”
Bingham considered parliamentary democracy as the essential quality of the British constitution and hence extended judicial deference to the emanations of that democracy – even to an apparently oppressive Government. He showed this in his judgment on detention without trial, A v Home Secretary, for example.
‘The judges are judges of the law, not of the Parliament. God forbid the state of the kingdom should ever come under the sentence of a judge’ – 17th Century MP
Now it must be said, what we have in Cameron’s statement on judicial review is not a matter that will prompt any judges to defy the will of Parliament with all the catastrophic constitutional results that that would entail. That would be too easy. Cameron is not thinking of putting legislation banning or curbing judicial review through Parliament. It’s quite possible he wouldn’t win. But he can tighten up the procedural requirements for those seeking judicial review by tabling secondary legislation – in effect by executive order which goes through Parliament in the sense that it sits there for a bit hoping no one will object to it (and usually no one does).
As it happens, though, judges do have the constitutional power to strike down such secondary legislation, for example, if it is ultra vires of the original substantive Act of Parliament (ie beyond the powers allowed by that Act). Or if it irrational or (in the European human rights context) disproportionate to the objective intended.
Taking the last ground, if the object is to ease planning restrictions and let a thousand intrusive and environmentally damaging businesses bloom, the curbs on judicial review that also prevent proper consideration of immigration cases (by far the largest category of JR applications) might be deemed disproportionate. If so, the new rules could be struck down. Or perhaps a new rule that reduces the timescale for bringing a judicial review claim might be deemed irrational. Currently it is in effect “as soon as possible” or no more than three months – how much less could it be?
But who could bring such a case? The restrictions on who has standing to bring a judicial review are already pretty limiting (whatever Cameron believes) – you have to have a direct individual interest in the case – though there are exceptions for well established and expert lobbying groups such as Greenpeace, representative of a wider constituency [though this may change under new Chris Grayling judicial review proposals on standing: see “New note” at the foot of this piece].
So we are looking for someone, perhaps with an immigration case, who would have had recourse to judicial review before the Government’s rule changes but not after. And thereby hangs the riddle wrapped neatly in the paradox. We are looking for someone to take a judicial review on the grounds that they are prevented from taking a judicial review …
The Ministry of Justice consultation paper is here: Consultation (pdf)
The President and Deputy President of the UK Supreme Court have expressed their fears about the curbs at the Lords Constitution Committee (13/2/13). Lord Hope made the point about the rule of law thus: “It is fundamental to the rule of law in our country that executive decisions are open to review by judges to see that they conform to what the rule of law requires. Any legislative changes would have to be undertaken very cautiously to see that they don’t disturb that absolutely vital part of our constitutional arrangements.”
Note: The above piece was written before the full proposals were made. These have avoided the issue of proportionality dealt with above (that curbing judicial review in general would not be a proportionate response to problems regarding planning applications) by reducing the three-month time limit for planning matters but not others such as immigration. Planning is far less likely to have a human rights dimension so judicial reviews are based on traditional English law principles, among them “Wednesbury unreasonableness” – is the decision so unreasonable that nobody acting reasonably could have made it? This allows quite broad discretion to authorities.However, see next note.
New note: Chris Grayling has now (September 2013) published a consultation on further restrictions to judicial review which go far beyond the area of planning. They would bar interest groups, charities, Non-Governmental Organisations and others initiating judicial reviews, thus eating further into the rule of law. The consultation paper is examined here: A Question of Standing: Grayling’s new attack on judicial review.
Newer note: The government response to consultation and proposals have now (2/2/14) been published and can be found here: The Government response pdf. New law on judicial review is incorportated in the Criminal Justice and Courts Bill 2014 Part 4.
A review of the Government’s first set of judicial review proposals is on the Human Rights blog: A war on judicial review
Public Law for Everyone (July 2014) has this which focuses on speeches by two former senior legal figures on the judicial review Bill as it passes through the House of Lords, specifically Clause 64 of the Criminal Justice and Courts Bill.
Former Supreme Court Justice Lord Brown notes: “The basic heresy here [in the Bill] is to treat judicial review … as a matter generally suitable for legislation at all. Essentially, I suggest that it is not. I seriously wonder if those who are behind these proposals understand the intrinsic nature of this supervisory jurisdiction. Judicial review is no more and no less than the exercise of the courts’ inherent jurisdiction to ensure that the decision-making of the Government, its executive action, remains within the bounds of legal propriety. As the noble and learned Lord, Lord Woolf, explained today, it is judge-made law par excellence; it has been and should remain, essentially, a matter for development and control by the judges themselves. If ever there was an area of the law that for the most part should remain free from legislative interference, it is this.” Hansard, 28 July 2014 : Column 1440