Parliament has the right to reverse judicial decisions, but governments must be careful not to undermine the important role the courts play as a check and balance in our unwritten constitution

The Independent Review of Administrative Law provoked much criticism and concern when it was announced by the government, but its final report was less radical than many predicted. In the last of our series of posts from speakers at our June conference on the government’s reform agenda, Lord Faulks speaks of the work of the review panel, which he chaired, and the government bill that resulted, which went further than the review recommended in terms of limiting judicial review.

The government has now published the Judicial Review and Courts Bill, which has had its first reading in the House of Commons and will proceed through its remaining parliamentary stages in the autumn.

The Independent Review of Administrative Law, which I had the privilege of chairing, will now be a footnote in the development of the law in relation to judicial review. The panel no longer exists and its members have returned to their normal pursuits

I would like to think, however, that we made a useful contribution to the debate. There were some commentators who thought the setting up of the review was ‘sinister’ and that our conclusions would inevitably lead to the radical reform of judicial review. I can assure those who said this that the review was genuinely independent, in the sense that we reached our conclusions entirely free from any interference by government. We were, however, influenced by the many high quality submissions that we received. Whatever our preliminary views might have been, we approached our task in an open way and without any predetermined conclusions.

The response by the government was at least initially, that it wanted to go further and it set in motion a further consultation. That was a course, it seemed to me, that it was entirely open to it.

In the final analysis, the bill does not differ very much from what we recommended. The government has opted to draft an ouster clause to reverse the Supreme Court’s decision in a case known as Cart. It is designed to act as a ‘trailfinder’ that, if enacted by parliament and respected by the courts, could serve as a model for future such clauses. This was not something we had suggested in our report. We did, however, say that we thought that it was open to parliament to include an ouster clause in legislation notwithstanding the reluctance of the courts to give effect to such provisions in the past. The bill does attempt to reflect the factors identified by judges as potentially justifying an ouster. It will be interesting to see what parliament says about it.

I am glad that the focus will be on parliament. One of the themes of our review was that we thought it was a mistake to characterise the debate over the scope of judicial review as being between the executive and the judiciary, when our constitutional settlement reflects the principle of parliamentary sovereignty.

Our conclusions were that despite a number of questionable decisions, we thought it would be a mistake to codify judicial review or to attempt to limit by statute the grounds on which judicial review is available. But we did confirm that it was perfectly open to parliament to reverse the effect of particular decisions, just as it does in other areas of law.

We also concluded that while judicial review was a vital feature of the rule of law, it was important that the courts should respect the limits of their institutional competence, just as parliament and the executive should respect the decisions that judges reach. Recent decisions, like R v Department of Work and Pensions, by a seven judge Supreme Court, indicate that the courts are indeed conscious of the need not to intrude on the political process, which produces the sort of compromises that are inevitable in a parliamentary democracy.

Governments of all colours will, from time to time, find irksome the encroachment of the courts into what they see as the province of politics. I hope that the review and the bill can help underline that while governments can, if parliament is willing, step in if the courts get something wrong, they should be extremely careful not to undermine the important role the courts play as one of the checks and balances that exist in our unwritten constitution.​

This post is one of a series of posts by speakers at the Unit’s conference on the government’s constitutional reform agenda. Lord Faulks spoke as part of a panel discussing judicial review, human rights and the judiciary. The panel is available to watch on YouTube, and to listen to in podcast form.

About the author

Lord (Edward) Faulks QC is a barrister and was Chair of the Independent Review of Administrative Law.

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