How do you solve a problem like judical review reform?

The Independent Review of Administrative Law (IRAL) announced last autumn has been much criticised for both its remit and its process. Joe Tomlinson and Lewis Graham offer an early assessment of the review, highlighting the flaws in its conception and design. They also acknowledge that the recently announced review of human rights seems not to be repeating the mistakes of IRAL.

In our constitutional system, it is a reality that central government wears two hats in relation to the judicial review system: the actor chiefly responsible for the design and management of the system in practice and the key ‘repeat player’ defendant. It is almost inevitable that, from time to time, tensions will result from this arrangement. Indeed, the UK has a rich history of governments of different political stripes ‘clamping down’ on the judicial review system and ‘striking back’ against specific court judgments. When such moments occur, they understandably provoke a form of constitutional anxiety that is familiar in the UK: a sense that the government is allowed to mark its own homework (or at least to exercise influence over the marker). While cyclical anxiety about the position of judicial review and looming reforms may be better understood as a feature not a bug of our contemporary system, startlingly little attention has been paid to the issue of how reform to the judicial review system ought to be considered. 

The importance of the reform process adopted was on display recently when, after being on the wrong side of a series of high-profile court cases, the government announced that the time was right for a new wide-ranging reconsideration of judicial review. It was clear immediately that this review—styled the Independent Review of Administrative Law (IRAL)—promised to be the most expansive policy examination of judicial review in decades. It is chaired by Lord (Edward) Faulks—a former Conservative Justice minister and now a crossbencher in the House of Lords—and constituted of a small group of academics and practitioners. Six months or so later, there has been much angst about potentially regressive changes being proposed and the defence of the current system has been robust. However, at the same time, many have been pointing to what they perceive to be significant deficiencies in the reform process. Features of the IRAL process which have drawn criticism include:

  • Confusion over the parameters of review: IRAL’s formal Terms of Reference have been described by Mark Elliott as ‘replete [with] syntactical errors’ and commentators have drawn attention to a number of ambiguities relating to the scope of the Panel’s mandate. For example, whilst the Review’s Call for Evidence confirmed that it was ‘considering public law control of all UK wide and England and Wales powers only,’ it seemingly left open a number of questions as to how any proposed changes to the law would affect devolved institutions (see here, here and here). The consultation also contains a paucity of relevant information, in contrast to previous consultations, which included details of the specific proposals and empirical data being considered. 
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Addressing the constitutional flaws in the EU Withdrawal Bill: The view of the Constitution Committee

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Today sees the start of two days of debate in the House of Lords as the EU (Withdrawal) Bill has its second reading stage. Ahead of that debate, the Constitution Committee of the House of Lords has produced a report on the legislation. In this blogpost Baroness Taylor, who chairs the committee, explains that the Bill as currently constituted has major flaws that could cause serious constitutional problems if left unamended.

Brexit presents an unprecedented constitutional challenge for the UK. In order to achieve a smooth departure from the European Union, it is essential that there is legal certainty and continuity on exit day. The European Union (Withdrawal) Bill (the Bill) is the government’s attempt to achieve this. It attempts to deliver certainty by preserving existing EU law as it currently applies in the UK and converting it into domestic law. This is a legal undertaking of a type and scale that is unique and it poses significant challenges for both parliament and the government.

The House of Lords Constitution Committee gave early consideration to these challenges in its ‘Great Repeal Bill’ and delegated powers report and its interim report on the Withdrawal Bill itself. We are disappointed that the Government has not addressed our earlier concerns and recommendations and, as it stands, the Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. The Committee’s latest report, published yesterday, explores the constitutional deficiencies of the Bill in detail, and offers a number of constructive solutions to improve this essential legislation.

At present, the Bill risks fundamentally undermining legal certainty in a number of ways. The creation of ‘retained EU law’ (existing EU law in a new domestic form) will result in problematic uncertainties and ambiguities as to what it contains and how it relates to other domestic law. The Bill fails to give sufficient clarity and guidance to the courts as to how retained EU law is to be interpreted after the UK leaves the European Union and it seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit. Continue reading