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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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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Politics, courts and the UK’s single market

image_preview.jpgBrexit is likely to pose numerous legal questions about how the various parts of the UK relate to each other once the UK leaves the EU. Deborah Mabbett argues that the recent Supreme Court decision on prorogation is therefore unlikely to be the last time the judiciary is called upon to decide a matter related to Brexit.

Even among those who welcomed the Supreme Court’s decision on the prorogation of parliament, there has been concern that it has entered into dangerous new territory. It might have been forced there by a Prime Minister who failed to observe convention, or by a parliament that resiled from its duty to remove a government which has no majority, but forced it was, and this is a source of concern and regret. Several commentators have argued that the decision paves the way for a nasty and unpredictable election structured around a populist opposition of courts and parliament versus ‘The People’, and indeed those who see Dominic Cummings as an evil genius fear that this was the intention of the prorogation in the first place.

For those seeking a calmer view, the Court is clear in its self-assessment that, far from entering new territory, it is firmly placed on ground it has held all along. It has upheld the rule of law, in the specific sense of imposing limitations on arbitrary authority. This is the daily bread and butter of administrative law, of which there is a great deal more than excitable commentators seem to realise. Below the public gaze, the courts have dug in their heels over countless daily exercises of executive power, including the mistreatment of immigrants, the removal of welfare rights and the denial of access to justice. True, the arbitrary power challenged in these cases is not exercised by the contemporary king—the Prime Minister—but by the agents and minions of the state. Escalating the level of scrutiny to the actions of high political figures makes the prorogation decision a matter of constitutional rather than administrative law, but law it is.

On what grounds can it be claimed that the Supreme Court’s decision is ‘political’? The domains of law and politics cannot be defined by their subject matter, which clearly overlap across great swathes of social issues. We must look instead for differences in method and modes of reasoning. The characteristic method of politics is the structured antagonism of government and opposition, organised around the general political orientations of left and right. The belief that the Court had made this kind of decision seems to be behind the claim of Toby Young and Douglas Carswell, among others, that the prorogation judgment calls for action to ferret out and expose the partisan leanings of the justices. Yet left and right partisanship was obviously beside the point in the decision. Continue reading

Are quotas for judicial appointments lawful under EU law?

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A recent report laid out recommendations for improving diversity in the judiciary, including a quota system for women and BAME candidates. Kate Malleson and Colm O’Cinneide explore the legality of such measures under EU law, and specifically whether the quotas could be brought in under EU employment law or EU gender equality law.

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic (BAME) judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

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