Independent Review of Administrative Law Update
(Limited Text - Ministerial Extracts only)
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Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I also thank the noble Lord, Lord Faulks, and the distinguished panel he chaired, for the hard work and painstaking research they put into producing their independent review. I share the right honourable and learned Lord Chancellor’s expressed view that
“judicial review plays a vital role in upholding the rule of law: it acts as one of the checks on the power of the Executive”.—[Official Report, Commons, 18/3/21; col. 504.]
As his right honourable friend Michael Gove put it when he was Lord Chancellor:
“Without the rule of law power can be abused. Judicial review is an essential foundation of the rule of law, ensuring that what may be unlawful administration can be challenged, potentially found wanting and where necessary be remedied by the courts.”
The first of the two steps the Government plan to take now is the ending of the so-called Cart JRs, through which the High Court permits a judicial review although the Upper Tribunal has refused permission to appeal. They say that so few Cart JRs succeed that they are a waste of judicial resources. From the consultation questions, it is clear that this decision has already been taken. Should not the short consultation proposed have been more open on this, given that almost all Cart JRs are immigration cases and so of particular sensitivity?
The Government also propose to permit courts to suspend quashing orders to allow the Government a chance to act to correct the errors that made the original government action unlawful. The reasoning for this change is powerful, and on this issue the consultation seeks views on how to achieve this objective—and rightly so.
However, the rest of this Statement sets loud alarm bells ringing. The Lord Chancellor says that the Government want to
“go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.”
He talks of examining
“the use of ouster clauses”—
as mentioned by the noble and learned Lord, Lord Falconer of Thoroton—
“the remedies available in judicial review proceedings, and further procedural reform.”
Bluntly, ouster clauses are clauses in statutes designed to ring-fence government decision-making and administrative action from court challenges by making them non-justiciable.
The panel was broadly opposed to the use of ouster clauses. Paragraph 2.98 of its report states:
“While the Panel understands the government’s concern about recent court defeats, the Panel considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally.”
Paragraph 2.99 states that
“while the use of such a clause to deal with a specific issue could be justified, it is likely to face a hostile response from the courts and robust scrutiny by Parliament.”
Paragraph 2.100 states:
“The decision to legislate in this area is ultimately a question of political choice. But when deciding whether or not to do so, the Panel considers that Parliament’s approach should reflect a strong presumption in favour of leaving questions of justiciability to the judges.”
We regard ouster clauses as an unacceptable threat by the Executive to insulate their future unlawful action against challenge. Except in certain well-established areas of prerogative action, they spell danger for the rule of law.
The consultation also proposes the introduction of prospective-only remedies. That would mean that past unlawful government action or SIs would continue to have effect, even if struck down for the future, so victims of past unlawfulness who had not had the means or the ability to challenge it would face gross unfairness. The Lord Chancellor says that this would
“create a system that encourages solutions to be found through political will rather than legal dispute, so that policy making as an exercise can be much more collaborative and better informed”.—[Official Report, Commons, 18/3/21; col. 505.]
He does not say how or why. Perhaps the Minister can explain that theory to the House.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
I am grateful to both noble Lords for their questions and comments. I am sure that this is a matter which we will be debating on a number of occasions in this House, so this evening I am going to be relatively brief, not least because the position of the Government is, as we have said, that we would like to consult on a number of matters, and consultation means just that.
Turning first to the comments of the noble and learned Lord, Lord Falconer of Thoroton, I join him in paying tribute to work done by the noble Lord, Lord Faulks, and the other members of this committee. They have done sterling work under the great pressure of a prevailing pandemic, and I am sure the whole House is grateful to them for the work they have done. I was very pleased to hear the praise given by the noble and learned Lord to the committee. Last August, he was tweeting that the Faulks committee was there to “dismantle judicial review.” I am pleased to see that, while the noble and learned Lord may tweet in haste, he has read the report and repented at leisure.
As far as publishing the evidence is concerned, we will publish the complete set of non-government submissions received by the panel next week once we have ensured that such publication is GDPR-compliant. That will be followed by a summary of the submissions by government departments to the panel’s call for evidence.
On ouster clauses, the noble and learned Lord used the word sinister. There is nothing sinister about them. There are two questions here: first, should one have an ouster clause at all? That is a matter for Parliament. Secondly, if there is an ouster clause, should it be enforced by the court? That is debated in the report and in the Government’s response to it. It is of central importance, which goes to the heart of the doctrine of the sovereignty of Parliament. Perhaps I might say, without being flippant, that on this point public law is too important to be left only to public lawyers; that is why we welcome a broad consultation. I am sure that there will be debates on these matters in the future, in this House and in the other place.
As we have set out in our response, the question is essentially whether ouster clauses are being applied by the courts in the manner in which they are drafted and passed by this House and the other place. As to whether an Act of Parliament would be needed, which I think was the noble and learned Lord’s last question, it may well be, depending on which issues are proceeded with. For example, if we proceed with the proposal for a suspended quashing order, that might well have to be done by primary legislation. The Supreme Court in the case of Ahmed concluded that the common law position was that a suspended quashing order was not available.
I now turn to the questions from the noble Lord, Lord Marks of Henley-on-Thames. First, on Cart, the panel’s analysis is, as he says, very thorough on this point. The evidence shows that only a very small percentage of this type of judicial review is ever successful. We do not feel the need to redo the consultation exercise carried out by the panels in that regard; we are focusing our consultation on how best to give effect to the recommendation in the panel’s report.
On suspended quashing orders, I note and broadly welcome the noble Lord’s support for these as a matter of principle. Obviously, there are questions about how they would be implemented; I look forward to discussing that matter with him in due course. I hear what he says on ouster clauses and I have obviously also read the paragraphs to which he referred. I think where he got to was that the position on ouster clauses would be given robust scrutiny by Parliament. I welcome robust scrutiny by the noble Lord and, indeed, by other noble Lords, but the panel said that there are circumstances in which it may be appropriate for Parliament to oust or limit the jurisdiction of the courts if there is sufficient justification for doing so. Given that, we think that it is right to consult on that question.
The noble Lord makes the point that, if one is to have a prospective remedy, it is important in the interests of justice to ensure that people who may have been unfairly affected by the decision are considered. We are clear that there must be a means by which a court can make an order with retrospective effect if the circumstances require it. However, with respect to a court making a suspended quashing order, we would like to consult on whether that should be an available option and, if it is, the circumstances and safeguards that that option would bring with it.
I hope that I have responded to all the points raised by both speakers. I will check the Official Report to ensure that I have done so.
The Deputy Speaker (Baroness Barker) (LD)
We now come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief so that I can call the maximum number of speakers.
Lord Hope of Craighead (CB) [V]
My Lords, of course Parliament has the power to legislate to limit or exclude judicial review. The question is how far it should go. I was a member of the panel of the Supreme Court in the Cart case. We set the bar as high as we could when we were defining the test that should be applied, but experience has shown that our decision has not worked so I agree that it is time to end that type of review.
As for suspending quashing orders, in HM Treasury v Ahmed in 2010 I found myself, to my dismay, in a minority of one against six in holding that our order setting aside an Order in Council freezing a terrorist’s assets before they were dissipated should be suspended to give it time for it to be corrected. I agree too with the proposal to consult on prospective-only remedies as I gave a judgment some years ago in favour of those.
So far, so good, but I hope that the indication that the Government are proposing to go further is not meant to be a suggestion that a more wholesale reform is proposed. That would be a cause for concern. Can the Minister reassure me on that point?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the noble and learned Lord’s comments. On prospective remedies, I mentioned the decision in Ahmed in my opening remarks. I hope I am not rubbing salt into the noble and learned Lord’s wounds when I mention that decision, and I am grateful for his comments on it.
On his last point, I shall put it this way: this Government are committed to the rule of law. Judicial review is an essential part of the rule of law—see paragraph 18 of the Government’s response. I hope that gives the noble and learned Lord the reassurance that he was looking for.
Lord Howard of Lympne (Con) [V]
My Lords, I echo the tributes that have been paid to the noble Lord, Lord Faulks. I congratulate him and the panel on their report and I welcome the Government’s response.
Unlike some noble Lords who have spoken, I particularly welcome the Government’s decision to launch a consultation on proposals to examine the use of ouster clauses. As the Lord Chancellor says, the current position on ouster clauses, which is not to give them effect, goes against the intention of Parliament. In many ways, the mother of all ouster clauses is to be found in Article 9 of the Bill of Rights, which provides that
“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”,
a provision to which scant regard was paid by the Supreme Court in the Prorogation case.
Can my noble friend the Minister give us any idea of the timescale of the consultation exercise to which he has referred? When may we expect to see—and, I hope, enjoy—its fruits?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for my noble friend’s comments on the report. I think the consultation period is six weeks. As soon as we have the responses in, we will work at pace to bring back the Government’s response to that consultation.
On ouster clauses and the decision in Miller II, perhaps I should merely stick to what I have said so far. I do not really want to get dragged into an analysis of Miller II this evening.
Lord Browne of Ladyton (Lab) [V]
My Lords, does the Minister agree with the former head of the Government Legal Service, Sir Jonathan Jones, as quoted in the Law Society Gazette, that:
“The review doesn’t bear out the suggestion that there has been significant judicial overreach or a surge of cases in recent years, or that large numbers of unmeritorious cases are being allowed to proceed”?
If so, why does the Statement imply the opposite? Further, does he agree with Sir Jonathan that:
“The proposal that remedies might be available only prospectively will, at least, have to allow for exceptions”
if only to
“avoid the risk of serious injustice to claimants who have already suffered loss or damage”?
Lord Wolfson of Tredegar (Con)
My Lords, on the first point, I respectfully disagree with the comments of Sir Jonathan, whom I respect very much. In conclusion 7, particularly the first two sentences of that paragraph, it seems to me that the panel is clear that there are cases where the courts have gone beyond a supervisory approach.
On the question of potential injustice for those who have suffered, if one is going to have a suspended quashing order or a prospective remedy, as I have made clear, that is something that we are interested in consulting on. Indeed, I would welcome the noble Lord’s involvement in that consultation.
Lord Thomas of Gresford (LD) [V]
My Lords, the Statement says that
“the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.”
First, is the political entanglement referred to the Prorogation of Parliament, and is referring an unlawful abuse of the royal prerogative to the court unwarranted? Secondly, who has lost trust in the judicial review process? Is it unsuccessful applicants whose applications have been refused, or is it the Government whose actions have been found so often to be unlawful? Thirdly, what does a presumptive decision mean? If it is that an appellant who is successful has no remedy or that the decision applies only to future decisions and not to him, why would anybody bother with a JR at all? So the Government want to go further; the review obviously has not gone far enough for them—oh, what a shame.
Lord Wolfson of Tredegar (Con)
My Lords, on the first point, the words used by the Lord Chancellor are straightforward; I do not think they need any glossing from me. On the second point and as to trust in the judicial review process, it is important that the process does two things. It enables Governments to govern; equally, it enables them to govern well. Judicial review is important for Governments because it makes sure that they govern well, and within the law. That is why we are particularly focused not only on the recommendations of the panel; we want to go to consultation on other matters as well.
On the last point, as to prospective remedies, with great respect, the noble Lord is simplifying what is a more complex matter. It is far from the case that a prospective remedy gives no remedy to the particular litigant in that case. It all depends on how the prospective remedy is furnished and how people affected by the decision can be compensated or otherwise dealt with during the intervening period. That is precisely why we want to go out to consultation: because the current cliff edge of either no remedy or a remedy ab initio, and a quashing from the moment of the decision, leads to unfortunate consequences. That is as the panel has said, as the Government have responded, and indeed, as the noble and learned Lord, Lord Hope of Craighead, explained in his minority judgment in Ahmed.
Lord Woolf (CB) [V]
My Lords, like others, I congratulate the Faulks committee on the work it has done and the circumstances in which it did it. I also indicate that there is at least merit in considering further the two matters which the Government propose to act upon. However, I ask the Government to bear in mind that judicial review has, so far, been very much a process which has evolved. It is most important that it is underpinned by discretion in the judges to see how it is applied. I feel that there will be room for improvements to be made. I welcome in particular the proposal that that should be done in certain instances with the assistance of the Civil Procedure Rule Committee, which has great experience in these matters. There is a lot to be careful about in what was contained in the announcement of the response by the Lord Chancellor. But all these matters can be carefully considered and I propose at this stage to say no more.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the comments of the noble and learned Lord, particularly for his support on the two matters he first mentioned. Respectfully, he is certainly right that a number of the suggested procedural reforms would have to go through the Civil Procedure Rule Committee. He made the point that judicial review has evolved over time, and so it has. But, in that context, he may like to see that in the Lord Chancellor’s introduction to the Government’s response, he makes the point in paragraph 6 that an iterative approach to reform is most appropriate. That perhaps chimes with the point which the noble and learned Lord was making about judicial review being a process, and an iterative process at that. Reform will also be iterative.
Lord Mackay of Clashfern (Con) [V]
My Lords, I join those who have paid compliment to the panel: its work was very well done. Have the Government considered whether, when a court finds a decision wrong, it should be able to decide itself, or should it have to remit to the nominated decision-maker?
Lord Wolfson of Tredegar (Con)
My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.
Baroness Ludford (LD) [V]
My Lords, the Government appointed a distinguished panel to review the operation of judicial review led by a Conservative former Justice Minister. The panel said that
“disappointment with the outcome of a case … is rarely sufficient reason to legislate more generally”.
It was obviously thinking of Miller 2, the prorogation case. The Government seem dissatisfied with that response. and are now consulting on statutory changes, such as for ouster clauses, which the panel advised against. The Faulks review also points out that
“any legislation would be of limited effect unless changes are also … made to the Human Rights Act.”
Given their reaction to the review of judicial review, will the Government similarly ignore the result of the Gross review of the Human Rights Act if they do not get the answers they want?
Lord Wolfson of Tredegar (Con)
My Lords, we are not disappointed with the report from the noble Lord, Lord Faulks, and his team. On the contrary, it is a very good piece of work. We are consulting for the reasons I have already expressed. The panel did not say that ouster clauses should never be used; it said that, when used appropriately, they should not be seen as an affront to the rule of law. We want to consult on whether and how they should be used. The independent review of the Human Rights Act is ongoing. We will consider its results in due course. While very significant reform of judicial review might require changes to the Human Rights Act, the changes we are proposing do not.
Lord Pannick (CB) [V]
My Lords, I declare my interest as a practising barrister in public law cases. I too thank the noble Lord, Lord Faulks, and his review team for the very sensible and balanced report which it has produced. The Minister will have noted the wise words of the noble Lord and his colleagues at paragraph 15 of their conclusions:
“Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
Do the Government agree?
Lord Wolfson of Tredegar (Con)
My Lords, I certainly agree that the courts would be expected to respect institutional boundaries, and Parliament and the Government should do likewise. The purpose of our consultation is to make sure that we produce the best system we possibly can so that all those involved in the judicial review process—judges, applicants, Government and everyone else—is party to a system which promotes good government and upholds the rule of law.
Lord Beith (LD) [V]
My Lords, we know what the Government’s latest ideas on the form of ouster clauses is, because there is one in the draft Bill to repeal the Fixed-term Parliaments Act. Clause 3 states that
“A court of law may not question … the exercise or purported exercise of the powers referred to in section 2 … any decision or purported decision relating to those powers, or … the limits or extent of those powers.”
Is that really the model that the Government are considering for other areas of law, and is it not simply putting the Minister in the position of saying, “I decide what my powers are and nobody can challenge that”?
Lord Wolfson of Tredegar (Con)
My Lords, a Minister does not decide what his or her powers are. If there is an ouster clause in an Act of Parliament, it is an ouster clause in an Act that has been passed by Parliament. When one is talking about the Fixed-term Parliaments Act, there may be special considerations because of the issue of Section 9 of the Bill of Rights. Generally, however, what we want to consult on in terms of ouster clauses are the two points that I have identified: first, whether ouster clauses ought to be used; and, secondly, if they are used, how to make sure that Parliament’s intention is given effect to, which we do not think is always the case with ouster clauses at the moment.
Lord Judge (CB) [V]
My Lords, the consultation process with which we are about to engage is taking place at just the time when the further expansion of executive power has been brought into sharp relief by the measures to prevent and defeat the coronavirus pandemic—measures, let it be noted, created and extended by statute. I therefore respectfully wonder whether it is consistent with the Minister’s accurate observation that judicial review is a
“vital check on Executive power”—[Official Report, Commons, 18/3/21; col. 506.]
even to begin to consider contracting the ambit of judicial review, a diminution in the ability of the citizen to question the exercise of executive power, and limiting the remedies available to those damaged by its misuse.
Lord Wolfson of Tredegar (Con)
My Lords, with respect to the noble and learned Lord, we are not seeking to limit the remedies at all. On the contrary: one of the things we are consulting on is whether we should expand the remedies available to the court so that it has more tools in its toolbox that it can use in appropriate cases.
Of course, I understand the noble and learned Lord’s point about the Coronavirus Act. It is important to recognise that, in those contexts, the level of scrutiny that was able to be afforded by Parliament was perhaps different from what it would normally be but, in consulting on these matters, it is no part of this Government’s intention to limit the scope of judicial review. We are trying to make sure that judicial review is appropriately focused for the particular purposes for which it is used. We are consulting on expanding the remedies available, not contracting them.
Lord Lansley (Con)
My Lords, I approach this from the standpoint of a parliamentarian, not a lawyer. I observed with some surprise that Parliament did not feature in the review’s terms of reference, so I welcomed the central role for Parliament in the panel’s recommended approach to the questions asked of it. Does my noble friend therefore subscribe to the view expressed by the noble and learned Baroness, Lady Hale, in her submission to the review:
“If Parliament does not like what a court has decided, it can change the law”?
To be preferred even more is that Parliament should be crystal clear in both its terms and purposes about what it wishes the law to be, thereby restricting the scope for judicial review to the conventional purposes of failures of process or abuse. Does my noble friend also share the reservation expressed by the panel about the excessive use of framework legislation, which leaves too much to statutory instruments to set out? The result of that is that the Executive and the judiciary engage in trying to determine what Parliament intended. Will the Government avoid seeking to make the regulations proof against judicial review, and instead put more effort into securing clarity and certainty in primary legislation?
Lord Wolfson of Tredegar (Con)
My Lords, I agree entirely with my noble friend that Parliament is sovereign. Its role is central and sovereign when we are considering questions around judicial review—I hope that the Government’s response to the panel’s recommendations reflects that. The noble and learned Baroness, Lady Hale, is of course correct that Parliament can act to reverse any judgment, but I also agree with the panel that it should do that only with great care.
I also agree with my noble friend that Parliament should legislate in terms which are as clear as possible. The corollary of that is that the courts ought to respect Parliament’s obvious intent. I repeat the points I made earlier about ouster clauses in that context.
As for legislation, the factors in play when drafting legislation are many. It is not always easy to decide whether something should be in primary or in secondary legislation, but I certainly agree with my noble friend that clear and unambiguous wording, particularly with regard to the extent of delegated powers, is something to be aimed at.