Tag Archives: Judicial Review and Courts Bill

Examining last session’s record-breaking number of government defeats in the House of Lords

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In the 2021-22 session of parliament, government defeats in the House of Lords reached record levels. Sam Anderson argues that two key factors combined to drive this phenomenon. First, the Johnson government pursued a controversial legislative agenda. Second, it seemed in some cases unwilling to compromise where evidence suggests that previous governments would have done so.

There were numerous examples throughout Boris Johnson’s premiership of his government’s rocky relationship with parliament. One recent manifestation – noted elsewhere – was that there were an unprecedented 128 government defeats in the House of Lords in the 2021-22 parliamentary session. This led some government supporters to suggest that the Lords has become a ‘House of opposition’ that ‘views themselves as there to obstruct’ the government. But is this assessment fair?

The Constitution Unit’s tracking of when and on what topics governments are defeated in the House of Lords offers key insights. With data stretching back to 1999, we can compare such defeats between different governments over time. This blog uses such data to dig deeper into the 128 defeats, seeking to understand what might have caused them. First, I argue that a large number of bills covering topics that have long animated the Lords was a factor. Second, I suggest that pressures which have in the past increased the chances that the government would make some sort of concession to the Lords had less effect under Johnson.

Lords defeats over time

The Constitution Unit’s Meg Russell – who now serves as its Director – began recording defeats in 1999, when the House of Lords Act removed most hereditary peers, breaking the Conservative dominance of the chamber. Since then, no single party has had a majority in the Lords, making governments of all parties more vulnerable to defeats there than in the Commons. Votes are of course just one form of parliamentary influence, but the Lords’ ability to defeat the government has been an important source of institutional power.

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The Queen’s speech, the Johnson government, and the constitution – lessons from the 2021-22 session

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As a new session of parliament commences, Lisa James discusses what constitutional lessons can be learned from its predecessor. She argues that the government’s legislation and its approach to parliamentary scrutiny in the 2021-22 session suggest that a disregard for checks and balances, a tendency to evade parliamentary scrutiny, and a willingness to bend constitutional norms are fundamental traits of the Johnson premiership.

A new parliamentary session began last week, with a Queen’s speech that laid out a highly ambitious volume of new bills. Many of these are likely to prove controversial – including planned constitutional measures.

To assess how the government might proceed, and how this might play out in parliament, it is useful to look back at the 2021-22 session. This was the first of Boris Johnson’s premiership not wholly dominated by Brexit or the COVID-19 pandemic – offering insight into both the government’s constitutional agenda, and its broader legislative approach. Since becoming Prime Minister, Johnson has been accused of a disregard for checks and balances, a tendency to evade parliamentary scrutiny, and a willingness to bend constitutional norms. In earlier sessions, his supporters could blame the exigencies of Brexit and the pandemic – citing the need for rapid action in the face of fast-moving situations. But the government’s legislation and its approach to parliamentary scrutiny in the 2021-22 session suggest that these are more fundamental traits of the Johnson premiership. And whilst Johnson has thus far been successful in passing his constitutional legislation, his rocky relationships with both MPs and peers mean that he may face greater difficulties in the future.

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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

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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.

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