Sir Jonathan Jones argues that the Queen’s Speech plans for reform of the courts may be less drastic than the rhetoric suggests
The Queen’s Speech included a commitment to “restore the balance of power between the executive, legislature and the courts”. This is a reference to the proposed Judicial Review Bill – which incidentally is all about the role of the courts, and has nothing to say about the balance of power between the executive and the legislature, which might be thought worthy of attention given the extent to which parliament has been side-lined over both Covid and the Brexit deal.
But the continued reference to “balance” in terms of the role of the courts is curious. The job of the courts is to interpret and apply the law, including the law as contained in primary legislation enacted by parliament, and secondary legislation made by ministers. How does it make sense for the law (or the rule of law) to be “balanced” against something else? This has led to the suspicion that what the government really wants is for some areas of government activity to be outside the scrutiny of the courts altogether. But reading the detail offered so far, the government’s proposed changes look slightly less dramatic.
The Independent Review of Administrative Law, headed by Lord Faulks, did not identify fundamental problems with the current system of judicial review. Nor did it find that there had been a surge in cases over recent years. Accordingly, it did not recommend any major overhaul or recodification of the system. Its main proposal was to reverse a case called Cart, which will mean excluding judicial review from a category of immigration cases. Although not without controversy, this proposal can be justified in that it is simply removing an extra level of review for cases that are already subject to senior judicial determination by the Upper Tribunal. The government has provisionally accepted that recommendation.
The Faulks review also recommended that parliament should legislate to make it clear that, in appropriate cases, the courts can make suspended quashing orders. In other words, a court could postpone the effect of an order to quash an unlawful act – giving time, for example, for the decision maker to cure the defect, or for parliament to legislate to clarify the position. This might be a way of achieving a just result as between the person bringing the claim, the government or other public body in question, and those third parties who might have honestly and justifiably relied on the lawfulness of the act in the meantime. Again, it seems that the government has accepted this recommendation.
In its subsequent consultation, however, the government proposed going further than the Faulks review. One suggestion was for legislation to make it clearer when parliament intends to “oust” the jurisdiction of the courts. This rang alarm bells: it tended to confirm that the government wanted to find ways of keeping the courts out of certain areas of policy making or decision making altogether, which could only make it easier for the government to act illegally in those areas. On the other hand, the courts have a history of finding ways around such ouster clauses – on the basis that parliament can never really intend to authorise obvious illegality or to confer limitless powers. So there was every chance that any new proposal for ouster clauses would not work anyway. In the event, judging from the summary of the Judicial Review Bill just published, it seems that the government may have dropped this idea.
The other new proposal was that in some cases where a judicial review challenge succeeds, the court might grant only a prospective remedy. The government also floated the idea that there might be a presumption in favour of prospective-only remedies in some circumstances. This, however, could have led to injustice, since it would deny redress to a claimant who had already sustained loss because of the unlawful act. Again, it is not clear whether the government is pursuing this proposal. We will need to see the detail of the bill.
Overall, this does not look like a major overhaul of judicial review or resetting of the “balance”. It does not exclude the courts from any particular areas of policy, and it is difficult to see how it fulfils the government’s stated aim of “[protecting] the judiciary from being drawn into political questions” – the court’s job, as now, will be to determine questions of legality even where they arise in a highly-contested policy space. But, to repeat, we will need to see the detail of the bill before we decide where it lies on the spectrum between “hollow gesture”, “worthy but dull”, and “sinister erosion of justice”.
Sir Jonathan Jones QC (Hon) is a senior consultant at Linklaters and is the former Treasury solicitor and permanent secretary of the Government Legal Department.