Independent Review of Administrative Law Update

Lord Beith Excerpts

Monday 22nd March 2021 Lords Chamber

[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.