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A thread on the gov panel set up to reform judicial power to review gov action in the UK, details of which here: https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
FIRST: context. In its Manifesto the Gov promised a Constitution, Democracy and Rights Commission to look at how our institutions operate and ‘restore trust’. It’s remit included:
This has been abandoned no doubt because the task is too vast as party political reform: it would take years and years to complete sensibly.
The review looks at only the greatest check on the Gov’s activities: the power of litigants to JR Government in court. The review is thus inherently unbalanced, looking at only one side of the constitutional equation, not powers, checks and balances as a whole.
This is the second time the Con government has embarked on this project: it made a number of reforms to JR in 2015 - see this blog by Ben Jaffey QC and me back in 2014 discussing the attempt to ‘load the dice in JR’: https://www.google.co.uk/amp/s/ukconstitutionallaw.org/2014/02/06/ben-jaffey-and-tom-hickman-loading-the-dice-in-judicial-review-the-criminal-justice-and-courts-bill-2014/amp/
SECOND: membership. Here is a surprise. No panel members with close connection to @judicialpwr which has led the criticism of judges checking Gov policy; and only one specialist JR practitioner ALBA ( @ALBA_Members) president Vikram Sachdeva QC
Sachdeva was the JR adviser to LJ Jackson’s costs review and will understand the real access to justice issues in JR. As the terms of reference include costs issues I hope his inclusion will bring a positive proposal on costs reform, eg reiterating Jackson’s (rejected) proposals.
To understand this issue of costs/access to justice see my blog here https://www.google.co.uk/amp/s/ukconstitutionallaw.org/2017/10/26/tom-hickman-public-laws-disgrace-part-2/amp/
The Chair Lord Faulks QC is mainly a prof negligence lawyer and former Gov minister; there is a leading private law academic - Nick McBride. It’s good to have balance and expertise from different disciplines but it’s a surprising mix nonetheless.
Professors Carol Harlow and Alan Page bring heavyweight academic input on public law, Page brings Scots law expertise. Harlow is a critique of judicial activism and has written extensively on Parliament ‘striking back’ at court rulings eg https://discovery.ucl.ac.uk/id/eprint/1493178/3/Rawlings%20striking%20back%20%20final%20for%20deposit.pdf
Whilst Faulks has been critical of the prorogation case (Miller II) in print, and of the HRA he’s also championed common law development in protecting rights:
The final member of the panel Celina Colquhoun is a specialist in planning appeals and inquiries and will give needed expertise on the role of judicial reviews in planning. The Gov has longstanding and not unjustified concerns about JR delaying development.
THIRD: terms of reference (TOR). These are here: https://assets.publishing.service.gov.uk/media/5f27d3128fa8f57ac14f693e/independent-review-of-administrative-law-tor.pdf
TOR (1) = Codification of JR. This is worth considering but unless it is done at a high level of abstraction as in Canada it would be a huge job to set out all the various ways gov action can be unlawful: witness Fordham J’s hugely detailed JR Handbook!
And most JR is statutory interpretation which can’t sensibly be codified.
Codification also achieves nothing of substance other than to check further judicial innovation. It could prevent proportionality becoming a standalone ground but if that is the objective it could be achieved more directly.
My main concern with TOR (2) and (3) is that it’s obvious the scope of non justiciability requires clarification but I can’t see that this panel, however clever, is better placed to do it than the courts addressing and clarifying case by case.
The need for courts to interpret the Bill of Rights art 8 (one of the few true areas of non justiciability) shows that even putting such rules in statute does not end debate or need for judicial determination.
TOR (4) relates to procedure and remedies. This is a huge subject in itself and I make no effort to distil my thoughts other than to suggest provocatively : be careful what you wish for, e.g. :
Less disclosure requires greater candour. // Allowing courts to reject claims or refuse remedies increases rather than reduced judicial power and discretion. // Any balanced look at costs will increase access to justice not reduce it (see above).
Importantly the review is *required* to ‘consider data and evidence on development of JR and judicial decision/making’. This is a huge task in itself and could easily take the entire review period to complete.
The footnotes to the TOR refer to other aspects of JR such as distinction between jurisdiction in the wide and narrow sense. Overall, then, the TOR are enormously broad - far too broad - requiring a root and branch review of JR akin to the justice all souls review in 1960s-80s
Harlow herself noted in 1990 that that review had not appreciated the ‘magnitude of the task’ when it started https://www.jstor.org/stable/764381?seq=1
Such a task cannot sensibly be done by this panel in the time period other than very superficially. It will therefore have to effectively narrow the TOR and focus on ‘hotspot’ issues if it is to produce a sound report.
For the same reasons, it should also seek to identify issues and fixes for which there is reasonable consensus and clear evidential support in the literature. But that is not what the Gov is expecting, which is pruning of judicial power of the sort that will be controversial. End
HOLIDAY QUIZ II: spot the constitutional slip in the above thread?
