Queen’s Speech

Lord Woolf Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Woolf (CB) [V]]

One of the proposals included in the gracious Speech is the statement that legislation will be introduced to

“restore the balance of power between the executive, legislature and the courts”.

The suggestion is that certain decisions of the courts on applications for judicial review are responsible for this alleged lack of balance. Having been personally involved in judicial review since its inception, I question whether this alleged lack of balance of power exists. I furthermore suggest that legislation, far from restoring the balance of power, could create a lack of balance which at present does not exist.

I can state this with added confidence because the Government set up an independent review of administrative law, chaired by the noble Lord, Lord Faulks, which as recently as March of this year published its report which set out its conclusions. I note that the noble Lord, Lord Faulks, will shortly speak to the House and I look forward to hearing what he has to say. The report made no suggestion, as far as I could identify, that there was any lack of balance that needed to be addressed, saying:

“Judicial review is considered an essential ingredient of the rule of law … an essential element of access to justice, which is a constitutional right”


and:

“On balance, little significant advantage would be obtained by statutory codification, as the grounds for review are well established and accessibly stated in the leading textbooks”.


I have the privilege to be editor of one of them. In their response to that report in March of this year the Government said:

“This does not mean we think there needs to be a radical restructuring of Judicial Review at this point. Rather, there are aspects of the current system and the doctrine applied by the courts where it would be useful for Parliament to intervene and clarify how Judicial Review should give effect to statute.”


If there is no clear case for intervention, I strongly urge the Government to think again before intervening.

Judicial review was uniquely crafted—not by government and not in the first instance by Parliament, but by the judiciary—to achieve and preserve the proper balance of power between the different arms of government. If there is a need for fine-tuning, it is better that this is left to the judiciary to remedy rather than legislation. In saying this, I do not refer to the procedural amendments recommended by the Faulks committee; those I would warmly welcome in the majority of cases.