Independent Review of Administrative Law

Robert Neill Excerpts

Thursday 18th March 2021 Commons Chamber

[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.

[Sir Robert Neill (Bromley and Chislehurst) (Con) [V]]

I thank both the Lord Chancellor for the tone of his statement and the members of the panel for their work. The Lord Chancellor was very clear in his commitment to the importance and the fundamental nature of judicial review in our constitutional arrangements. Does he agree therefore that, as these proposals are progressed to further consultation, it is important that the conclusions are adequately considered by Government, that there should not be any undue pressure of time to bring proposals forward, that it is better to move carefully and incrementally, and that this House will have ample time to consider any proposals once the Government have formulated them? A guiding principle that we could perhaps bear in mind are the words of the late Lord Bingham in his book “The Rule of Law” when he said that, in judicial review, the role of the judges was to be the “auditors of legality: no more, but no less.” We should not have confusion about how the audit works, but neither should we do anything that impedes the ability of the auditors to do their job.

[Robert Buckland]

I am grateful to my hon. Friend, the Chair of the Justice Committee. His reference to the late Lord Bingham and the description of the audit role is an invaluable intervention. That is precisely what the Government seek to do here. It is all about protecting the role of the judiciary as well. I am a fierce defender of their role and I want to make sure that they are not inadvertently drawn into matters of policy, which are matters for this place, the Government, and democratic institutions, and not drawn into merits-based assessments as opposed to assessing the legality or otherwise of Executive action or omission.