The government’s reforms to judicial review must respect the separation of powers

Both the Attorney General and the new Lord Chancellor have hinted that ministers are mulling further reforms to the relationship between the executive and the courts.

Suella Braverman, the Attorney General, has suggested that ministers may seek to respond to what they see as the growth of judicial reviews brought for “political ends”, while both Braverman and Dominic Raab, the Lord Chancellor, have indicated that the government is interested in legislating to overturn particular court judgments.

In both areas, the government needs to make sure that ministers’ frustrations about particular cases do not threaten to undermine essential checks and balances in the constitution.

The government’s focus on the motives of its legal challengers is a bad starting point

The Attorney General has criticised those “seeking to use [...] judicial review to achieve political ends”, suggesting that the process should not be “used as a political tool by those who have already lost the arguments”. To be fair to Suella Braverman, she is not alone in raising concerns about the motives of those bringing cases against ministers. In a recent case on the child benefit cap, Lord Reed, the President of the Supreme Court, sounded a note of caution about discrimination law challenges brought by “campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation […] as a means of continuing their campaign”.^[1]

Yet the government’s focus on the motives of its legal challengers would be a bad starting point for changes to the law. Almost any challenge to a central government decision could be characterised as being brought for “political ends”: ministerial decisions are political, and judicial reviews seek to reverse them.

Claimants do not, by and large, risk their time, energy and reputation on legal challenges to government decisions purely out of a burning desire that the government should act lawfully, whatever that may mean. They do it, like all litigants, because they want a particular outcome.

One of the first cases taught to students of constitutional law is Entick v Carrington, a celebrated judgment of 1765. John Entick, a regular critic of the government, successfully sued for trespass after the King’s chief messenger broke into his home in search of “seditious papers”. The case established important legal principles about the powers of the executive; indeed, it was part of the basis for the Fourth Amendment to the US Constitution. But it was brought by a campaigner for the most “political ends” imaginable: to make sure he could keep publishing articles lampooning ministers.

In other words, access to the court for angry people with an axe to grind is one of the most important means of ensuring that ministers do not break the law, because nobody else wants the hassle. So, although the Attorney General says that it is “properly open to Parliament to respond” to the trend of litigation which pursues political ends, it is not clear why Parliament should take this as its lodestar for reform.

The government ought to show restraint in legislating to overturn judgments against it

The government’s indications about its plans for reform suggest that it may also be interested in addressing a rather different problem: that the courts, in ministers’ view, sometimes get the wrong answer. Dominic Raab has said that the government will “get into the habit of legislating on a more periodic basis” to overturn particular court judgments, and has suggested that a particular “mechanism” may be set up for this purpose. It is not yet clear how frequently the government wants to bring forward such legislation, or in what circumstances, or what the mechanism would be.

In principle, parliamentary sovereignty means that Parliament is entitled, at least as a matter of UK law, to overturn any judgment it likes. But legislation which overturns judgments also engages another important constitutional principle: the separation of powers. Parliament makes laws, but it is the courts who interpret, apply and enforce them.

Suppose that a government which enjoyed a large majority, and strong party discipline, got into the habit of legislating to overturn the court’s ruling every single time it lost a case. The government would effectively become the judge in its own case, giving itself carte blanche to act without any regard to its legal obligations.

That would ultimately be bad news for citizens, in two ways. First, it would be uncertain: they would struggle to find out what the law was if they could not rely on judgments of the court to tell them. Second, it would be unfair: the government’s interpretation of its legal obligations is partisan, and that is exactly why independent courts are needed to answer these questions.

It would also be bad news for Parliament: though legislators might try to place legal obligations on the executive, those obligations would not count for much if ministers could evade enforcement.

No one is suggesting that the government will go that far. But, as the hypothetical at least demonstrates why, as with reform to judicial review, the government needs to show restraint.  The easier it is for ministers to decide that judgments against them should be overturned, and the more often this happens, the greater the risk to fairness, certainty and the constitution. The government has said that it wants to ‘restore the balance’ between the courts and politicians; that should not mean equipping ministers with weights to tip the scales in their favour.

1. R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26