Independent Review of Administrative Law

David Lammy Excerpts

Thursday 18th March 2021 Commons Chamber

[Mr David Lammy (Tottenham) (Lab)]

May I begin by thanking the panel for their work? We will study the proposals carefully and note the announcement of further consultation. We would like to see all submissions to the consultations published; can the Secretary of State confirm whether he will do that? I also note that, as feared, the Government are considering making certain decisions of Parliament beyond the reach of judicial review. I note that the independent review of administrative law considered that it would be a serious disadvantage to enable Parliament to oust JR by altering the statutory code. Can he confirm whether that is in fact his intention, and if so, why he has taken the step of ignoring the concerns of his own review?

The Government should exercise extreme caution in expanding the use of ouster clauses to prevent the Executive from being challenged in the courts. That is a fundamental right, and this is particularly worrying, given the Government’s disdain for parliamentary scrutiny and No. 10’s history of hoarding powers.

In my 20 years in this House I have never encountered a Government more disdainful of our rights, freedoms and rule of law than this one. One of the Prime Minister’s first actions was to unlawfully prorogue the House; after he was re-elected, he sent his Secretary of State for Northern Ireland out to boast about how the Government would break international law in a specific and limited way; and on Tuesday we saw the Government launch an unprecedented attack on the British public’s freedom to protest. At each of these moments the Lord Chancellor and Secretary of State for Justice has chosen to stay silent, ignoring his special duty to uphold the rule of law.

Judicial review is the only mechanism by which members of the public can challenge the Government and public bodies when they break the law. In recent months, we have seen how important that is. It was a judicial review that uncovered the truth about the Health Secretary’s unlawful failure to publish multimillion-pound covid contracts within the 30-day period required by the law. In a Government who have been turned rotten by cronyism—we are having the Health Secretary on WhatsApp pouring a pint to land a deal—accountability matters a lot, and it is not only crony contracts that the Government may be trying to hide.

The Government have made countless mistakes, which may or may not have been unlawful during the coronavirus pandemic. These may help explain why the UK has one of the highest death tolls in the world. Mistakes include failing to provide health and care workers with adequate personal protective equipment, as well as sending hospital patients back to care homes without testing them. Members of the public are rightly using judicial review to challenge the Government on mistakes like that. If the Government weaken judicial review, they may avoid responsibility for other potentially unlawful acts during the pandemic. Will the Lord Chancellor guarantee to me that no judicial review focused on the Government’s mistakes during the pandemic will be affected by the changes that he now proposes?

On the surface, the review has looked at technical aspects of judicial review. The formal scope focuses on potential codification of grounds, the parameters of judicial authority and the procedural changes, but its political purpose is sweeping and dangerous. The person appointed to lead it was highly vocal in his criticism of the judiciary in the aftermath of the Supreme Court’s 2019 judgment on Prorogation. There has been briefing from Johnson’s Downing Street of the intention

“to get the judges sorted”,

and there can be little doubt that the review is part of an attempt to hoard more power in No. 10.

Can the Secretary of State tell the House where the idea to attack judicial review came from—was it him, the Prime Minister or Dominic Cummings? If the Lord Chancellor still refuses to publish all the submissions to the review—it is extraordinary that he will not publish those submissions—will he at least commit to publishing the submission that came from the Home Office?

A responsible Government would seek to consolidate and protect the democratic legal right of judicial review, not constrain and undermine it. Just as we condemn foreign Governments for attacking the rule of law, as in Poland and Hungary, Members must also condemn our own Government for doing the same. Members from all political traditions should be just as outraged that the Government decided in the middle of a pandemic to use their precious time to launch an attack on judicial review. Madam Deputy Speaker, be in no doubt: this cynical, misguided and politically motivated move is from the same authoritarian playbook. Judicial review is the only way the public can challenge the Government when they act unlawfully. Labour will defend it, so that we can hold this incompetent and untrustworthy Government to account.

[Robert Buckland]

I thank the right hon. Gentleman for his question. I think I can deal very shortly with the rather hyperbolic diatribe about the position of this Government and the rule of law. There is absolutely no doubt about our adherence to rule of law principles, as with all Governments who have preceded us and indeed Governments to come. I take issue with his suggestion that somehow I am staying silent on these matters. I certainly have not hesitated at important moments, for example, during the Prorogation issue, to defend the judiciary robustly in public, as is consistent with my oath.

Let me answer the right hon. Gentleman’s questions, particularly those on publication. First, those contributions to the review call for evidence that are quoted in the report have been published today. The other public responses to the consultation will be published next week. We are making sure that they are all consistent with our general data protection regulation obligations, but I give him that undertaking that they will all be published. The Government submissions to the consultation will be summarised and published within the next 10 days or so, which will give everybody a clear view of submissions to the call for evidence, but in a way that is consistent with collective Cabinet responsibility. I give him absolutely that undertaking that the next stage—the consultation process—will follow the same course as other public consultation processes. I encourage him and all interested parties to take a full role in this.

The right hon. Gentleman made a point about ouster clauses, which deserves some scrutiny. Such clauses are not completely unknown to this House. Indeed, when one looks at the Parliament Act and the particular function that the Speaker has with regard to processes between this House and the other place, one sees that it contains ouster clauses. The Fixed-term Parliaments Act 2011 had an ouster clause. The question is about the particular purpose and the way in which such clauses are used. There have been times when broad ouster clauses have been introduced, which have naturally caused great concern. The right hon. Gentleman might well remember one such example, because the asylum Bill that he shepherded through this House back in 2003 contained an ouster clause that was described as “without precedent” in its extent. I sympathise with the position he is in, because Governments will often want to create a high degree of legal certainty, to make sure that the processes are clear and that the parties involved and everybody else knows with certainty what is to happen; I can understand why he wanted to pursue that course then. So it is wise of everybody concerned with this issue to take a long view, consider the matter carefully and come up with considered submissions and suggestions, rather than, I am afraid, descending to rhetoric that does not meet the reality of the situation we are dealing with.

These proposals are sensible, incremental reforms that are very much within the tradition of the development of our law. They are the result of much consideration, not just by Lord Faulks, but by a very diverse panel of different opinions and different perspectives, which can hardly be described as a sort of panel that was designed to reach a conclusion before the document had been written. It was genuinely independent and I value it very highly for that.

In summary, these proposals, together with what we want to consult upon, are a mature, reflective look at a process that plays an important part in our society and our constitution, but which, like all other parts of our democracy—this place, local government and all the agencies of accountability—merits careful and close scrutiny. Frankly, it is our duty, as a Government and as a Parliament, from time to time to make sure that that delicate constitutional balance is being maintained. That is what we seek to do, and I make no apology for the initiative that we have taken.