How do you solve a problem like judicial 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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Constitutional reform: then and now (1995-2020)

In the latest blog celebrating the Constitution Unit’s 25th anniversary, human rights academic and advocate Francesca Klug recounts how aspects of the constitutional agenda of the mid-1990s were realised, and what lessons we can learn about how to entrench its achievements, prevent democratic backsliding and stop erosion of hard-won rights.

When I was at school, I learned nothing about the British constitution, but one thing I did absorb was this: although we do not have a written founding document, our invisible constitution was apparently uniquely successful and therefore inviolable. However, during the 1980s, I gradually became aware that there was something a bit odd about this perfect constitution. In other democracies, many of the controversial or unpopular measures introduced by Margaret Thatcher’s governments – such as the ‘poll tax’ and broadcasting and book bans – could be challenged in the courts. In the UK, however, there was nothing citizens could do to overturn such policies, except take to the streets to protest or wait up to five years for another election. 

This powerlessness and lack of accountability was a major driver behind the founding of Charter 88 in 1988, led by Anthony Barnett and Stewart Weir. I was lucky as a relatively young activist to be asked to join its council. We called for holistic change: a democratic second chamber, electoral reform, devolution, freedom of information and a bill of rights. And we had one major overall objective: we wanted the people of this country to have more power over the decisions which affected them; what in today’s money might be called ‘taking back control’. We sought this not for its own sake, but as a means of making our society fairer. 

It took a little time, but this message started to persuade people at the highest levels of the Labour Party. John Smith succeeded Neil Kinnock as Leader following the Conservatives’ 1992 general election victory and the following year he gave a landmark speech to Charter 88, entitled ‘A Citizens’ Democracy. For the first time, he articulated a clear objective for wholesale constitutional reform. Its purpose, he said, was to ‘restore democracy to our people – for what we have in this country is not real democracy: it is elective dictatorship.’ The use of the term ‘elective dictatorship’ is interesting, as it partly echoed Lord Hailsham, a former Conservative Lord Chancellor, who had coined the phrase two decades earlier. Notably, in this speech Smith committed the Labour Party to the introduction of a human rights act based on the European Convention of Human Rights (ECHR), which turned 70 years old this month. 

John Smith died unexpectedly the following year, but Tony Blair, despite some scepticism, largely kept faith with his predecessor’s commitment to constitutional reform. The precise objectives articulated by Smith, however, seemed to wither away and the purpose of the proposed policies became more obscure. In particular, there was no unified narrative to link them together and no sense of what might come next. 

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The government’s proposed Constitution, Democracy and Rights Commission: what, why and how?

meg_russell_2000x2500.jpgalan.jfif (1)The Conservative Party manifesto promised a ‘Constitution, Democracy and Rights Commission’, but as yet little is known about the government’s plans. Meg Russell and Alan Renwick reflect on what such a Commission might look at, and how it might go about its work. They conclude that a long-term perspective is important, so that the Commission is not just ‘fighting the last war’ over Brexit. Given the fundamental nature of the questions that may be asked, citizens should be fully involved.

Page 48 of the Conservative Party manifesto committed the government to establishing a ‘Constitution, Democracy and Rights Commission’ within its first year. This could have a far-reaching remit, covering ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, plus the operation of the Human Rights Act. Creation of such a body is clearly an ambitious enterprise, with potentially long-lasting effects – but, as yet, very little is known about the government’s plans for the Commission. This post first explores the ‘what and why’ of the Commission: which issues might it need to address, and what is the motivation behind it? Second, we consider the ‘how’: specifically, in terms of how the public could and should be involved.

What will the Commission review, and why?

The list of topics potentially ascribed to the new Commission is long, and covers some absolute fundamentals of the constitution. While the UK has seen much constitutional change in recent decades – most obviously Labour’s post-1997 programme, which included devolution and Lords reform, and the subsequent Constitutional Reform Act 2005 which established the Supreme Court – these developments involved no formal review of the core relationships between different constitutional branches. Indeed, Labour’s programme was often criticised as piecemeal, and for failing to go back to first principles. In some ways, a review of these fundamentals is therefore refreshing. But questions such as the proper balance of power between government, parliament and courts, and the role of the monarchy are also extremely big, complex and delicate.

So why are such challenging questions being asked now? This is where the Commission’s potential role gets more troubling. The UK has recently witnessed an exceptionally turbulent period in constitutional terms, with the referendum vote for Brexit followed by a significant struggle over its implementation. Particularly during 2019, tensions ran very high between government and parliament, with the Supreme Court becoming involved via the prorogation case. That these tensions helped motivate the proposed Commission seems clear from other words in this section of the manifesto, which suggest that ‘The failure of Parliament to deliver Brexit… has opened up a destabilising and potentially extremely damaging rift between politicians and people’. Leaving aside the question of which parliamentarians exactly were responsible for blocking Brexit, this statement highlights how concerns about the most recent period (including the Supreme Court’s role) have driven some on the Conservative side to seek reform.  Continue reading