Lord Faulks: Striking the balance

Open to review?

The Faulks panel may prove to be a convenient fig leaf to allow government to override the rule of law

Columns On Law

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

Are the courts making it too difficult for the government to govern? That’s effectively the question that two Cabinet ministers, Robert Buckland and Michael Gove, have asked a panel of lawyers headed by the former Conservative justice minister Lord Faulks QC.

To be fair, the independent review of administrative law put the question more neutrally in a call for evidence it circulated on 7 September. “Does judicial review,” it asked, “strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”

So you might think a “yes” would be acceptable. But read on. “The panel is particularly interested in any notable trends in judicial review over the last 30 to 40 years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before and whether it should be struck differently going forward.”

Everybody knows that courts have become more interventionist over the past four decades. In 1984, a year after Margaret Thatcher made an order ending trade union membership for staff at the intelligence agency GCHQ, the law lords decided that executive action was not exempt from judicial review merely because a minister was exercising prerogative powers. This was a significant development. But, like most such rulings, it came in response to an indefensible government policy — in this case, not consulting those affected.

The GCHQ case, as it’s called, was followed by the UK Supreme Court last year in the case known as Miller No 2. Again, the prime minister’s attempt to exercise prerogative powers — this time, to prorogue parliament for five weeks — was held unlawful. Faulks described this as “the stuff of politics not law”. Again, though, judges had tried to redress the balance.

The case turned on whether the prime minister’s advice was justiciable: a matter for the courts rather than, as Boris Johnson claimed, one for which he was answerable only to parliament. And, sure enough, this turns out to be a key issue for the Faulks review. Consultees are asked whether the principle of non-justiciability requires “clarification”. Maybe, it suggests helpfully, “the amenability of public law decisions to judicial review by the courts — and the grounds of public law illegality — should be codified in statute”.

Everybody knows that courts have become more interventionist over the past four decades

Moving on, the panel asks whether procedural reforms are needed to “streamline the process”. Are government departments burdened by having to disclose policy decisions? Does the duty of candour go too far? Are the courts too generous in allowing claimants the required standing? Should time limits be tightened further? What redress is necessary? Should claimants lose the right to appeal when permission is refused? How about charging specialist groups more to intervene? I paraphrase — but only slightly.

The Faulks panel has sent a series of questions to government departments. “Making full allowance for the importance of maintaining the rule of law,” it says, “do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions?” There are 11 chances to say “yes”. And then a two-part question, to which the expected answers are “no” and then “yes”. “Does the prospect of being judicially reviewed improve your ability to make decisions? If it does not, does it result in compromises which reduce the effectiveness of decisions?”

Faulks then invites public comments on these questions. My own response will come as no surprise. It is that I am likely to do my homework better if someone else may be marking it. Government departments will be familiar with a booklet called Judge Over Your Shoulder, a guide for decision-makers. The first edition, in 1987, warned officials of “danger areas where you are particularly at risk of laying your minister open to a challenge in the courts”. The current edition (2018) takes a more positive approach, with a foreword saying that JOYS is intended “to help improve policy development and decision-making in government”. That foreword was written by Sir Jonathan Jones, who resigned last month as head of the government legal department.

If Jones’s resignation tells us anything about the government’s respect for the rule of law, we can expect the government to treat Faulks’s well-balanced panel as something of a fig-leaf and press ahead with statutory controls regardless of what his review recommends. Still, ministers should remember who will have to interpret and apply it.

Michelle O’Neill, Northern Ireland’s deputy first minister, was judicially reviewed in August over her refusal to implement a compensation scheme for victims of the Troubles. “The case being made on behalf of the Executive Office is that the court is not constitutionally entitled or properly equipped to explore, address and adjudicate upon what are essentially political/policy issues,” said Mr Justice McAlinden. “This argument does not withstand even the most cursory form of scrutiny. It is, in reality, arrant nonsense dressed up in the guise of reasoned legal argument.”

So long as we have fearless and independent judges, judicial review will remain in safe hands.

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