Independent Review of Administrative Law Update

Lord Marks of Henley-on-Thames Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, I thank the noble Lord, Lord Wolfson of Tredegar, for making the Statement available to us today. I also thank the noble Lord, Lord Faulks, and his team for the work they have done considering judicial review. We may disagree with many of the things the noble Lord, Lord Faulks, says, but there is no doubt that he has made a very important contribution to the debate. He is a substantial figure in the law and in this House, and we greatly appreciate the work that he and his team have done.

I ask the noble Lord, Lord Wolfson of Tredegar, to explain why, extraordinarily, the Government have not published the responses to the call for evidence made by the committee of the noble Lord, Lord Faulks. In particular, why have the Government not published what the department said about judicial review? That is a very important aspect of the debate on this matter, and I would very much welcome seeing what it said, not just extracts.

Judicial review ensures that the Executive act in accordance with the law. The law mainly means Acts of Parliament. That is why the noble and learned Baroness, Lady Hale, said JR is mostly “the servant of Parliament”. This Government have proved themselves disdainful of the law, as we saw during the passage of the internal market Act and in the Attorney-General’s abandonment of the rigid constitutional convention of independence. The most sinister aspect of the Statement the Lord Chancellor made in the other place is the Government’s intention to consult on increasing the circumstances in which judicial review will not apply and ousters will work more often. Judicial review requires the Government to act in accordance with Acts of Parliament and their powers, and not in an arbitrary, capricious or wholly unreasonable way. What problem do the Government have with that principle? Could the noble Lord, Lord Wolfson of Tredegar, reaffirm the Government’s commitment to those principles?

Secondly, what is the problem with the current rules of ouster? In what areas do the Government wish the ouster to apply more readily? For example, do they wish it to apply more readily in setting aside the 0.7% target? Do they want it to apply more readily to the many cases of domestic violence and violence against women in which judicial reviews have been taken?

Finally, to what extent do the Government intend to pass an Act of Parliament to give effect to the proposal they make in the consultation?

[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.