Queen’s Speech

Lord Faulks Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, as a number of noble Lords have said, the gracious Speech referred to the possibility of restoring balance in the constitution. It is well known that the constitution is not always easy to identify. In fact, one of my revered colleagues on your Lordships’ Constitution Committee—the noble Lord, Lord Hennessy—says that he has spent his lifetime looking for it.

The combination of Brexit, a minority Government, division in the Conservative Party on the approach to Brexit and the rigidity of the Fixed-term Parliaments Act amounted to a constitutional crisis. The purported Prorogation of Parliament by the Prime Minister resulted in a decision by the Supreme Court that he had acted unlawfully and that Parliament should return. This was the second occasion on which Brexit had caused the Government to lose a major constitutional case before the Supreme Court.

It may be that these reversals were a factor in the Government’s decision to set up the independent review. They convened a panel, which I was invited to chair. The terms of reference were broad; the timescale short. Having received an enormous amount of very high-quality material, the panel was not ultimately convinced that judicial review needed radical reform. We set out our reasons, probably at too much length. While some of the panel, including me, preferred the decision of the strong Divisional Court to that of the Supreme Court in the prorogation case, we considered that it was very much a one-off and an unreliable basis on which to conclude that there was something structurally awry with judicial review, which is a vital ingredient in the rule of law.

However, we did accept that it was perfectly legitimate constitutionally for the Government—any Government —to legislate to reverse particular court decisions, whether they were the result of judicial reviews or, indeed, in any other context. We specifically pointed out two areas which we thought were ripe for reform and would need legislation, and they both involved reversing decisions of the Supreme Court. The Government have accepted our recommendations, and some of the judges involved in the decisions have graciously acknowledged that they did perhaps need revisiting. The question remains: will the Government go further?

I understand why the Government are concerned about judicial review. In his Reith lectures, Lord Sumption memorably described “law’s expanding empire”. But as we conclude in our report, it is inevitable that the relationship between the judiciary, the Executive and Parliament will from time to time give rise to tensions, and a degree of conflict shows that the checks and balances in our constitution are working well. We must trust our judges to identify cases which are—to use the words of a Court of Appeal judge—using judicial review as “politics by another means”.

A theme which we also hope emerges from our report is that the issue should not be characterised as merely a conversation between the Executive and the judiciary. We emphasise the importance of Parliament. If legislation is clear, there is little scope for judicial review. But while Governments continue to use framework Bills and Parliament does not prevent them doing so, it cannot be altogether surprising that government decisions are challenged in the courts.

I briefly mention one other constitutional principle: free speech. The online safety Bill, as it is now called, is an exciting and unprecedented piece of legislation. Our newspapers are mostly regulated—I declare an interest as the chair of IPSO—and it is time that social media, where most people gather their news and other information, should also be regulated to protect the vulnerable and safeguard the integrity of the news-gathering process. This legislation is to be the subject of pre-legislative scrutiny and no doubt will be closely scrutinised by both Houses. However, the Secretary of State, Oliver Dowden, was right when he said last week that it was vital that the Bill did not compromise freedom of the press, whether in print or online.

I congratulate the noble Baroness, Lady Fullbrook—who is not now in her place—on her excellent maiden speech. I also mention a maiden speech made last week by the noble Lord, Lord Lebedev. He said that, coming from Russia, he did not take freedom of speech or the rule of law for granted. Neither should we.