Reviewing judicial review:
the inevitability of substantive reform

A ‘Call for Evidence’ questionnaire was published by the panel on 7 September. Potential respondents were given a mere six weeks - until midday on 19 October 2020 - to submit a response to the Independent Review of Administrative Law (IRAL) secretariat. It is immediately apparent from the list above that the review is to be wide-ranging and will encompass many of the fundamental issues relating to JR. Some of these issues relate to matters which affect all those decision-makers that are potentially subject to the supervisory jurisdiction of the courts, for example, the grounds on which their decisions may be challenged, who has standing to bring a JR claim, or the time limit for doing so. Other matters, however, clearly relate more exclusively to the government.

High-profile court defeats

It is difficult not to assume, therefore, that limb 2 of the review (see above) is the product of recent high-profile defeats for the government in cases in which it has argued unsuccessfully that the issue before the court was, by reason of its subject-matter, non-justiciable. The best example of this was in R (Miller) v Prime Minister [2019] UKSC 41, 24 September 2019, where the Supreme Court rejected the argument that the prime minister’s advice to the Queen regarding the prorogation of parliament was non-justiciable. The same argument had earlier succeeded before the Divisional Court ([2019] EWHC 2381 (QB), 11 September 2019), but not before the Inner House in the parallel proceedings in Cherry QC MP and others v Advocate General [2019] CSIH 49, 11 September 2019. This was on the basis that since the prorogation advice was inherently political in nature, the courts were precluded from reviewing it by the doctrine of the separation of powers.

It will be recalled that a unanimous Supreme Court took a different view of the matter. In its judgment, what the court was being asked to do was to rule on the extent of a particular prerogative power rather than to rule on the mode of exercise of the power in question. It has been well established that the former lies within the jurisdiction of the courts

The fact that there were differences of opinion between English and Scottish courts at first instance, and then as between the Divisional Court and the Supreme Court following the ‘leap frog’ appeal in Miller above, adds some weight to the argument that the principle of non-justiciability is less clear than it might be. That said, we ought not to overlook the arithmetic. Although the Divisional Court which dismissed the claim as non-justiciable consisted of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division, of the 18 judges who heard the cases, (11 Justices heard the appeal in the Supreme Court) 14 ruled that the matter was justiciable. As the then President of the Supreme Court, Lady Hale, tellingly remarked:

… although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it … the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense’ (at para 31).

In order to illustrate the point, Lady Hale referred to two examples (at para 32): the Case of Proclamations (1611) 12 Co Rep 74 and Entick v Carrington (1765) 19 State Tr 1029. In the latter case, it was established by the Kings Bench that an interference with the rights of the individual can only be justified if it is authorised by law. The principle of legality which the case reflects is an enduring feature of the rule of law and, as Lord Sumption remarked in R (Privacy International) v Investigatory Powers Tribunal and others [2020] AC 491 [2019]; [2019] UKSC 22; [2019] 2 WLR 1219 at para 172, ‘the purpose of judicial review is to maintain the rule of law’.

Whilst accountability to parliament acts as a safeguard of sorts against the potential misuse of power by the executive, as Lord Steyn has noted, substantial ‘working majorities’ in the House of Commons may sometimes result in the parliamentary scrutiny of the executive being less careful or thorough than it ought to be (see: ‘The Weakest and Least Dangerous Department of Government’ [1997] PL 84). Accordingly, few would deny the need for a supervisory jurisdiction in which a different and independent branch of government - the courts - is able to hear challenges relating to the lawfulness of the government’s acts or omissions. The difficulty lies in reaching agreement as to what the extent of that jurisdiction should be, and which body should determine its limits.

Hitherto, issues relating to justiciability have been decided by the courts through the development of the common law. Thus, for example, in the landmark case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, the House of Lords decided, contrary to previous authority, that the courts were able to hear legal challenges regarding the exercise as well as the extent of prerogative powers.

However, it was not an unlimited jurisdiction. Instead, as Lord Roskill’s list of ‘excluded categories’ made clear, there were certain exercises of prerogative power which remained non-justiciable, for example, the appointment of ministers, the signing of treaties, etc. Occasionally, the executive has, through legislation passed by parliament, sought to establish bodies whose decisions are stated to be non-justiciable. Where ouster clauses have been employed, the courts have shown a willingness to interpret them in such a way as to preserve the jurisdiction of the courts: for the classic example, see the House of Lords’ decision in Anisminic Ltd v Foreign Compensation Commission and another [1969] 2 AC 147. For some commentators, cases such as Anisminic and the 2019 Supreme Court decision in R (Privacy International) v Investigatory Powers Tribunal (see above) provide evidence of judicial overreach, that is to say, where the courts have exceeded the scope of their authority under the UK’s constitutional arrangements. The former Supreme Court Justice, Lord Sumption, has been a notable critic of the courts in this regard. Thus, during his 2019 Reith Lectures, Lord Sumption noted that whilst judges have, in the past, sought to develop the law ‘within an existing framework of legal principle and without trespassing on the functions of parliament and the executive’, in more recent times, in cases such as R (Evans) and another v Attorney-General [2015] UKSC 21, the courts have encroached upon the territory of the other branches of government.

More recently, the Lord Chief Justice (LCJ), Lord Burnett, gave oral evidence before the House of Lords’ Constitution Committee on 13 May and the House of Commons Justice Committee on 22 May, which appears to suggest that he is ‘siding with Sumption in saying the courts have gone too far’: see Joshua Rozenberg, Setting the boundaries of judicial review 1 June 2020, Law Society Gazette ((2020) 117 (19) at p12)). Thus, after being invited by Lord Hennessy during his evidence to the Constitution Committee to take a ‘panoptic view of the constitution’, the LCJ remarked that ‘the business of judicial review’ had grown substantially during his professional career, and that being a ‘construct of the common law’, parliamentary interventions had been confined to procedural matters rather than the substantive rules of JR.

Nevertheless, the LCJ welcomed the ‘extremely interesting prospect’ of a ‘calm, measured and proper debate about the boundaries of judicial review’, and thought that anyone with an interest in this area might be able to identify ‘one or two steps’ which ought not to have been taken. Notably, however, he refrained from specifying those steps which he personally considered had been either unnecessary or excessive.

Conclusion

It is implicit in the review exercise currently underway that the government is minded to make substantive reforms to JR. Whilst there are some reforms which may be welcomed, for example, putting an end to the inconsistency between section 31 of the Senior Courts Act 1981 and the Civil Procedure Rules 54.5(1) regarding the time limit for bringing a claim, the prospect of a government seeking to set down in statute which of its decisions can and cannot be reviewed is somewhat alarming, as is the possibility of the executive limiting the grounds on which its decisions may be challenged, or the relief which may be granted against it where a claim is upheld.

It remains to be seen what recommendations the panel will make, and whether all or some of them will be either unanimous or reflective of a majority view. Since the panel is to report to the Lord Chancellor ‘later this year’, the time scale is tight given the amount of work which it will have to do. In addition to collating the ‘Call for Evidence’ responses, the review will also involve analysing the available data on JR, as well as taking account of how supervisory proceedings operate in other common law jurisdictions, most notably Australia.

At the Federal level, under section 19(1) of the Administrative Decisions (Judicial Review) Act 1977, the executive has the power to make regulations declaring ‘a class or classes of decisions to be decisions that are not subject to judicial review’. Moreover, a class of decisions may be specified ‘by reference to the nature or subject-matter of the decisions, by reference to the enactment or provision of an enactment under which they are made, by reference to the holder of the office by whom they are made, or otherwise’ (Administrative Decisions (Judicial Review) Act 1977 s19(3)). It should also be noted that, at section 5, the Australian legislation specifies the grounds on which a decision may be reviewed.

Whilst many of these grounds will be familiar to public lawyers in England and Wales, the important point for present purposes is that they are set down in statute rather than in the common law, even if it is from there that they may have originated. The Australian experience, thus, demonstrates how the scope of the supervisory jurisdiction of the courts has been determined by a legislature, and an executive, rather than by the courts. It is little surprise, therefore, that the panel has been specifically directed to have regard to ‘the position in … Australia’ as part of its review.

The tone of the announcement of the review and the IRAL Secretariat’s terms of reference for the panel suggest that, as far as the government is concerned, the publication of a report is likely to be the first stage in the reform of JR. If this proves to be the case, it is to be hoped that any such reforms enjoy broad support and that they are concerned with making the supervisory jurisdiction more efficient and effective rather than with the imposition of unreasonable restrictions on its availability. It would be a concern, for example, if the rules on standing were amended so that the need for a ‘sufficient interest in the matter to which the application relates’ (Senior Courts Act 1981 s31(3)) was replaced by a less permissive test, with the result that significant public law decisions could no longer be challenged for want of a challenger.