Lord Faulks QC

Fixing the unbroken

Reform of judicial review is a solution without a problem

Columns On Law

This article is taken from the March 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.

The crisis in the criminal justice system is largely of the government’s own making. Years of underinvestment — selling off courts and reducing judges’ sitting days — have been exacerbated by the pandemic. The Ministry of Justice is playing down the problems while trying to catch up. At the same time, it is trying to distract us by interfering with parts of the legal system that have coped remarkably well.

On the long-term agenda are reforms to the Human Rights Act and perhaps even the UK Supreme Court. The government’s short-term target, though, is judicial review. Lawyers are very concerned that ministers will now try to upset the balance of power through legislation.

At the end of January, a panel chaired by Lord Faulks QC, a former Conservative justice minister, delivered its report to Robert Buckland, the justice secretary, and Michael Gove, the cabinet office minister. Buckland had already told MPs that the report would not be published until ministers were ready to announce their own proposals — during “the spring”, he promised. In the Whitehall microclimate, spring may last until the end of July.

The independent review of administrative law got off to a bad start last summer. Faulks was not the government’s first choice and the review’s much-criticised terms of reference were already set in stone by the time he was persuaded to chair it. 

But Faulks made things worse by sending out a questionnaire that — as I explained in my column last October — invited central and local government departments to explain how judicial review impeded their functions and made their decisions less effective.

ALBA argued that the Faulks panel was paddling in “deep constitutional waters”

We can imagine what they said — but that’s all. Faulks assured me that he and his panel had wanted as much transparency as possible. They encouraged government departments to publish their submissions. But Whitehall refused to do so, even after Faulks had reported.

What we don’t have to imagine are the responses Faulks received from nearly 80 concerned citizens and representative bodies, helpfully listed by a research group called the UK Administrative Justice Institute. Most of them were highly critical.

The Law Society, representing solicitors in England and Wales, said its members saw no need for fundamental reform of judicial review. “The evidence shows that it is working well and achieving its purpose.” Except in asylum and immigration, the number of cases was declining.

Barristers’ leaders rejected the suggestion in Faulks’s questionnaire that there was any conflict between judicial review and the proper discharge of government functions. On the contrary, the Bar Council said, review on fairness grounds ensures that decisions with important effects on people’s lives are taken only after they have been properly heard. Review on grounds of actual or apparent bias is a safeguard against favouritism and corruption.

That view was endorsed by the barristers’ counterparts in Scotland. “There is no serious basis in a modern democracy,” said the Faculty of Advocates, “for the view that public bodies and government authorities are entitled to operate without accountability for material mistakes of law or fact in their actions or inactions.”

ALBA, the professional association for barristers who specialise in judicial review, argued in a detailed submission that the Faulks panel was paddling in “deep constitutional waters”. From the review’s website, it looked as if the government was arguing that, in future, it should be able to operate in a way that is currently unlawful.

If Buckland thought it would persuade anybody that parliament needs to take power from the people, he will be disappointed

“The role of judges in developing and applying [judicial review] is part of the UK’s constitutional settlement and a key feature of the separation of powers,” ALBA said. “Any parliamentary intervention in this jurisdiction, either to its substance or by way of codification, would be an unprecedented step of enormous constitutional significance and uncertain consequences.”

The Judicial Power Project, supported by the think-tank Policy Exchange, chose to illustrate its response with an architect’s design for the Royal Courts of Justice that was rejected by the selection committee in the 1860s. It looked impressive — but who knows whether it would have stood up? Professor Richard Ekins, the project’s director, said that “judicial review has been extended widely and deployed aggressively” in recent years. He listed a number of judgments that demonstrate clear failings and “warrant legislative reversal” — while warning of possible “subversion” by the judges. 

Those arguments were rejected by the authors of De Smith’s Judicial Review, a leading textbook. “There will always be cases that some will consider too activist or too restrained,” they said, “but it is a mark of a mature and functioning democracy that the executive accepts judicial decisions which define the legal scope of its powers and the judiciary respects the extent to which the executive must be free to formulate and implement its policies within the law.”

And this is surely the point. The courts do allow the executive to govern within the law. Despite the extraordinary powers ministers have taken, judges have not struck down the government’s pandemic-related legislation. 

If Buckland thought that the Faulks review would persuade anybody that parliament needs to take power from the people, he will be sorely disappointed. The government’s proposals are likely to be a solution without a problem.

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