Independent Review of Administrative Law

With permission, I would like to make a statement on the Government’s response to the independent review of administrative law.

In our democracy, 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. Importantly, as the noble and learned Baroness Hale put it in her submission to the review panel,

“In the vast majority of cases, Judicial Review is the servant of Parliament”.

Through judicial review, the courts ensure that the powers that Parliament grants are not used in ways that exceed the limits imposed on those powers, and are not used in ways that are contrary to Parliament’s intentions. The purpose of judicial review is not to question the merits of any decisions made under those powers; rather, it is to ensure that the decision was made lawfully. The jurisdiction of the courts is therefore meant to be supervisory only.

Last year, I launched an independent review of administrative law to examine trends in judicial review. I am sure the House will want to join me in thanking the panel, chaired by the noble and learned Lord Faulks, for its diligence in producing such an excellent report, copies of which I have placed in the Libraries of both Houses. It was quite an undertaking, conducted in this time of covid. The panel ran a call for evidence, which elicited many valuable contributions from a diverse range of interested parties.

The report’s finding—that there is a growing willingness to accept an expansion of the remit of judicial review, whether in terms of more decisions being considered justiciable, or the way in which the courts review an exercise of power and the remedies given—is worrying. I am sure that the House will agree with me that the recommendations in the panel’s report about how we can restore a more sensible balance of responsibilities between Parliament and the courts are clear, practical and achievable.

The Government are consulting on a range of policy proposals, but there are two recommendations in particular from the report that we are keen to take forward as soon as possible. First, we will follow the review’s recommendation to legislate to remove a type of judicial review known as the Cart judicial review, after the Supreme Court case of that name.

The issue is that, even though decisions of the upper tribunal are supposed to be of the same status as those of the High Court, the Cart judicial review route allows someone to challenge certain upper tribunal decisions by applying to the High Court for permission for judicial review of the upper tribunal’s decision, and potentially onward to the Court of Appeal should the High Court refuse permission, as in fact it does in the vast majority of cases.

In such an appeal, the Court of Appeal is essentially asked whether it thinks that the proposed appeal against the High Court’s refusal to grant permission to judicially review the upper tribunal’s refusal to grant permission to appeal against the first tier tribunal’s decision should be allowed. That—eloquently, perhaps—outlines the essence of the problem: we say that there are simply too many layers and too many otiose proceedings that do not serve the interests of justice.

The review analysis found that out of 5,502 Cart judicial reviews brought between 2012 and 2019, only 0.22% were successful. That is an astonishingly low rate. Given that each and every one of those cases required detailed consideration by judges, I agree with the panel that a huge amount of judicial resource is being used to rectify a vanishingly small number of errors. The proposed reform will place the decisions of the upper tribunal and the High Court on an equal footing, and we will bolster the current array of remedies available to the courts so that issues can be resolved in a collaborative way.

I agree with the panel that the courts should have the ability to suspend quashing orders and to mandate a time by which any administrative oversight should be corrected. I will accept that recommendation and would like to consider how it should be implemented and whether suspended quashing orders should be presumed to apply or mandatory.

The steps recommended by the panel are an excellent starting point for rebalancing our system, but the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process. As the House will see, the report contains a detailed analysis of judicial review and how it operates in practice, and we are at the right juncture to take a closer look. Today, I want to open up a public debate on the role of judicial review within our wider constitutional arrangements by launching a consultation on further proposals to examine the use of ouster clauses, the remedies available in judicial review proceedings, and further procedural reform.

It is self-evidently open to Parliament to delineate the role of the courts in controlling any particular power because, of course, Parliament is sovereign. Parliament can do this by passing an ouster clause—a considered choice that certain subjects are not appropriate for judicial control. For example, in the Parliamentary Constituencies Act 1986, Parliament provided that reports of the Boundary Commission are not subject to judicial review. Unfortunately, the current practice on ouster clauses—not giving them effect—arguably goes against the intention of Parliament, so we are considering putting in place a set of rules that clearly delineate which issues are a matter for the courts to adjudicate through judicial review and which are not. For that reason, the Government want to consider the workings of ouster clauses and find a way for them to be used more effectively and in the way intended by Parliament.

The consultation proposes the introduction of prospective-only remedies, which would limit the retrospective effect of any quashed decision or action. That would complement the use of suspended quashing orders and could result in more considered resolutions. Instead of the sledgehammer of remedies that demand immediate resolution and lead to rushed policy, I want to 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.

The consultation will therefore consider three things: first, whether to give judges discretion in providing for prospective-only remedies; secondly, whether prospective-only remedies should be presumed to apply in all challenges against statutory instruments; and finally, whether all remedies granted when statutory instruments are challenged must be prospective-only unless it is a matter of exceptional public interest for them not to be.

As part of this work, to make such remedies effective I am bringing forward proposals for reforms to the doctrine on nullity. The consultation will also consider whether to recommend to the civil procedure rule committee that it considers a range of procedural reforms to improve the efficiency of the administration of judicial review claims.

As Lord Chancellor, my role is to uphold the rule of law and defend the judiciary. The Government want to seize the opportunity to do just that by restoring a proper balance between the institutions that have been so integral to our success as a nation in protecting the rights of individuals and our vital national security, and effective government itself. We are determined to ensure that judicial review—this vital check on Executive power—is maintained for future generations and that the process is finely tuned within our constitutional arrangements, to enable it to be a true conduit for fairness in our society. I commend this statement to the House.

May I begin by thanking the panel for their work? We will study the proposals carefully and note the announcement of further consultation. We would like to see all submissions to the consultations published; can the Secretary of State confirm whether he will do that? I also note that, as feared, the Government are considering making certain decisions of Parliament beyond the reach of judicial review. I note that the independent review of administrative law considered that it would be a serious disadvantage to enable Parliament to oust JR by altering the statutory code. Can he confirm whether that is in fact his intention, and if so, why he has taken the step of ignoring the concerns of his own review?

The Government should exercise extreme caution in expanding the use of ouster clauses to prevent the Executive from being challenged in the courts. That is a fundamental right, and this is particularly worrying, given the Government’s disdain for parliamentary scrutiny and No. 10’s history of hoarding powers.

In my 20 years in this House I have never encountered a Government more disdainful of our rights, freedoms and rule of law than this one. One of the Prime Minister’s first actions was to unlawfully prorogue the House; after he was re-elected, he sent his Secretary of State for Northern Ireland out to boast about how the Government would break international law in a specific and limited way; and on Tuesday we saw the Government launch an unprecedented attack on the British public’s freedom to protest. At each of these moments the Lord Chancellor and Secretary of State for Justice has chosen to stay silent, ignoring his special duty to uphold the rule of law.

Judicial review is the only mechanism by which members of the public can challenge the Government and public bodies when they break the law. In recent months, we have seen how important that is. It was a judicial review that uncovered the truth about the Health Secretary’s unlawful failure to publish multimillion-pound covid contracts within the 30-day period required by the law. In a Government who have been turned rotten by cronyism—we are having the Health Secretary on WhatsApp pouring a pint to land a deal—accountability matters a lot, and it is not only crony contracts that the Government may be trying to hide.

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 know 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.

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 is contained in 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.

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.

I thank the Justice Secretary for his statement and the panel for its work. We will, of course, scrutinise the report carefully and constructively, but we will do so from the starting point that there is very little about this vital democratic safeguard that needs to be fixed. We absolutely do not share the Justice Secretary’s concerns about perceived expansion of judicial review. Our concern is that successive Conservative Governments have sought to constrain anything that gets in the way of their agenda: a gagging Bill on charities; restrictive trade union laws; cuts to legal aid; and, this week, the egregious attacks on the right to protest. We would be utterly failing as an Opposition if we did not approach this whole project with a healthy and significant degree of scepticism and concern. Talk of ouster clauses and restricting remedies is indeed especially alarming, and leads us to question again—is not this more about the Prime Minister’s anger at judgments such as the article 50 Miller case or the Prorogation case led by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry)?

Par for the course, this announcement was trailed this week in the context of migration litigation, but, in that context, if the Government were really interested in reducing reliance on judicial review, why do they not restore the statutory appeal rights that they have slashed and burned over the past decade or invest properly in decision making, so that it is faster and more decisions are right first time? In short, it is better to fix the failing Home Office instead of meddling with one of the only systems that people have left to protect themselves from its incompetence. That is true right across Government. More reviews about asylum seekers have been talked about this week. Tomorrow, it will be people’s housing or social security cases.

I am grateful to the hon. Gentleman. May I answer his last question first? I can give him that assurance. With regard to the Cart jurisdiction, that clearly relates to a reserved matter concerning immigration issues, which does, of course, apply to the Scottish jurisdiction as well. In respecting separate jurisdictions, as I always do, these proposals relate to England and Wales matters and have been carefully delineated in that way.

With regard to the hon. Gentleman’s other assertions, I will simply say this: to conflate issues relating to public order with this Government’s approach to the rule of law and their steadfast belief in democratic institutions is, once again, to stretch reality too far. Without repeating the arguments that we had earlier this week, I cannot equate the adoption of recommendations by the independent Law Commission about the law of public nuisance with the sort of reactionary, authoritarian acts of France of the 1790s. It beggars belief that such comparisons are being made. They do not stand close scrutiny, and I am sure that in the weeks and months ahead, the intellectual poverty of these arguments will be exposed.

I thank the Lord Chancellor for his statement. From my recent practice at the Bar, I know that the judicial review system is sometimes abused, and some unscrupulous lawyers will use it when they should not. Does my right hon. and learned Friend agree that Opposition Members would be hypocritical to oppose this review, given that they—including the shadow Justice Secretary—proposed a complete abolition of judicial review in immigration and asylum matters?

My hon. Friend, who is an experienced family practitioner of many years’ standing, will know from her professional experience that, while the proper use of legal process to make legitimate claims is at the heart of our rule of law, it should sadden all of us if we see attempts being made to delay and frustrate that process by the use of procedures that, frankly, are otiose and do not add to the fairness or justice of proceedings but rather detract from the overall outcome and the fairness of it.

My hon. Friend is right to make the point that successive Governments, including the one in which the right hon. Member for Tottenham (Mr Lammy) served, have argued, sometimes very passionately, in favour of quite wide-ranging ouster clauses in order to achieve a higher degree of legal certainty. That was what happened back in 2003, when the right hon. Gentleman was in government. What we need to do now is avoid having those arguments in future, with overly wide ouster clauses, and find a proper modus vivendi, whereby they can be used proportionately in a way that will not offend the courts.

I thank the panel for the work it has been doing. There is no justification for the proposals to restrict people’s access to court. The current judicial review system works well, allowing people directly to hold Governments of any colour to account and enforce their rights through the courts. Instead of this assault on the rule of law, will the Ministry of Justice instead focus on the shockingly low conviction rates for crimes committed against women and girls and publish plans for how to ensure that offenders of violence against women and girls are properly prosecuted and convicted?

The hon. Lady is, frankly, wrong to describe these proposals as a curtailment of judicial review. I will give her an example of an area where the use of a suspended quashing order could have helped campaigners. There was a case about tuition fees in which the Secretary of State was challenged for breaching the public sector equality duty. The court could only, at that stage, give a declaration of unlawfulness because a quashing of the decision would have caused administrative chaos. If a suspended quashing order had existed as an option, that would have had more teeth for those who were campaigning against tuition fees, which the hon. Lady’s party supported back in 2010.

From personal experience in local government, I know that judicial reviews can bring significant uncertainty to decisions that have been made by democratically elected and publicly accountable bodies. Will my right hon. and learned Friend outline the benefits he anticipates from this review in respect of local authorities and their decisions?

My hon. Friend speaks with considerable experience as a deputy leader of a major London borough and a long-standing member of the Local Government Association. He will see that there will be many advantages as a result of the proposals. For example, as I have mentioned, the ability to suspend quashing orders is a very pragmatic and sensible step. It means that minor administrative errors will not result in the entire policy being struck down, leading to great uncertainty and often administrative headaches for local authorities and others. I am sure that my hon. Friend, with his background in local government, will look at the consultation document and come up with further sensible suggestions.

The amount of time and resources spent by successive Conservative Governments on restricting judicial review is extraordinary. It is one slender means that the individual has to challenge the power of Government when they act unlawfully. Rather than saying, “There’s nothing to see here,” does the Lord Chancellor want his legacy to be one of undermining judicial discretion, the common law and the rights of the citizen in order to make the Executive safe from challenge and scrutiny?

My legacy, I hope, if these proposals are, after consultation, taken forward in the form of legislation, will have been to enhance the options available to the judiciary. If we look at the remedy proposals, we will see that creating extra powers such as suspending quashing orders, and other types of discretionary remedies, will allow the courts to take a more surgeon’s scalpel-like approach to some of these issues, rather than the sometimes rather blunt sledgehammer of quashing a particular decision, making it a nullity, or, at the other end, making a declaration of unlawfulness. I hope that my legacy, whenever it comes, will have been to increase the discretion of the courts and to rebalance their position within our unwritten constitution.

It seems to me that we need to find the right balance between protecting the rights of individuals to rightfully challenge Executive power and ensuring that government can proceed effectively without vexatious legal claims. How will my right hon. and learned Friend ensure that we get the right balance?