Buckland: we are not ousting judicial review

Lord Chancellor confirms that courts will be able to review Internal Market Bill. But how?

As I reported yesterday, the government is insisting that the United Kingdom Internal Market Bill does not prevent the courts from reviewing regulations made by ministers in contravention of international and domestic law.

I hope to publish an analysis of the government’s position — in a piece for my paying subscribers only — later today.

In the meantime, I have made a lightly edited transcript of the Lord Chancellor’s answers to Lord Pannick QC at the House of Lords Constitution Committee. [Update: the official transcript is now available].

Pannick began by asking the lord chancellor, Robert Buckland QC, about the meaning of clause 47:

Does it mean that the court is prevented from exercising its normal power to declare regulations null and void if, for example, if they lack basic certainty; or they purport to impose criminal offences without justification; or they purport to impose retrospective penalties?

Buckland’s reply follows this video clip:

Robert Buckland  Lord Pannick, can I reassure you and the committee that whilst clause 47 has important qualifications within it, it does not exclude the courts’ ability to judicially review these regulations. There was never any intention or effect, for there to be a general ouster of judicial review. And that was confirmed, I think, by the Office of Parliamentary Counsel, who, of course, are responsible for drafting these provisions.

And, of course, these provisions themselves were amended by the government, which I think demonstrates the care and thought that’s gone into making sure that there wasn’t an inadvertent breadth to this particular provision, because of the sensitivities that naturally exist around it.

With regard to the drafting, clear words are certainly required to prevent the court’s jurisdiction to judicially review the regulations. The regulations made under clauses 44 and 45 are, of course capable of being judicially reviewed under ordinary public law grounds. And that includes what I think everybody is familiar with: grounds of vires, rationality, legitimate expectation, all those questions are entirely legitimate questions that can be raised by applicants who seek to challenge these particular provisions.

I do accept, of course, that clause 47 goes that bit further, by providing that courts cannot find the regulations to be unlawful by reason of their compatibility, or inconsistency, with a rule of domestic or international law. And that includes inconsistency or incompatibility with the EU’s own interpretation of the application of the state aid rules, for example, in Article 10.

I think all of us would agree is that inconsistency with international law isn’t what we would regard as a standard ground for judicial review. But I felt, and indeed the government felt, that it was important that that position was clarified, so that there was an increased certainty when it came to these particular provision.

And also, when it came to the time limits — bearing in mind the different jurisdictions which of course we have in the United Kingdom — it was important that there was consistency there, as well. But as a result of the qualifications and amendments made by the government, I think there is greater clarity about the Human Rights Act aspects of the "notwithstanding" clause: It doesn’t mean that the court won’t be able to take into account relevant European Court of Human Rights judgments, for example. It does, oblige a minister, when making regulations, to make a section 19 statement as well. 

Public authorities who act pursuant to these particular regulations will remain under the duty to act compatibly with convention rights. And therefore I think that, whilst there are qualifications in this particular clause, they are not of a type that could be reasonably argued as creating either a fundamental ouster, or even a significant ouster, to the rights of individuals and groups to challenge by way of judicial review.

Lord Pannick  I have some difficulty with that, Lord Chancellor. I entirely understand your point that the domestic courts should be prevented from considering compatibility with international law. But this clause goes much further than that. It purports, as I said, to prevent the court from finding these regulations unlawful because they are incompatible or inconsistent with any rule of domestic law. Why is it, then, that these regulations could be challenged for uncertainty, retroactivity matters, that sort of thing? Surely that falls plainly within the language of this very broad exclusion? That’s my difficulty.

Robert Buckland  Lord Pannick, I absolutely understand the point. I would say this, that there needs to be a balance between making sure that the fundamental right to judicial review is not ousted.

I reassure the committee and, indeed, everybody listening that that is that is definitely the government’s intention: we do not seek to oust JR. But there has to be also some degree of certainty to these regulations and again, I go back to the context within which they might be used. They would be used in order to safeguard a position of unity within the United Kingdom internal market, the position of Northern Ireland within the union of the United Kingdom, and the sort of fundamental questions and issues that I think a responsible government has to face up to.

I don’t make any apologies for seeking to, through this particular provision, obtain as high a degree of certainty as possible. And therefore, I think probably we will be returning to this argument over the next few weeks and months, Lord Pannick. But what I wanted to convey to you was that, actually, between us there isn’t a fundamental philosophical divide. There is, I think, a more subtle argument here as to where the balance should lie between the right to have an unfettered access to judicial review, and also the national interest, we would say as a government, in obtaining as much certainty as possible with regard to the application of these regulations.

I think that’s where the argument will lie. And I look forward to hearing the debates ahead in your lordships’ House.

Lord Pannick  Could I, with the chairman’s consent, just come back once more because there is a philosophical distinction, with respect, between us. I cannot see that you can claim credit for not excluding judicial review, while, at the same time, clause 47 immunises any regulations from any review by reference to any principle of domestic law. That’s my difficulty.

Robert Buckland  As I’ve said, Lord Pannick, I do not think, in all earnestness, that the difference is that dramatic. I think, whilst I certainly don’t suggest that you have used any language that perhaps could be described as romantic or emotional about this issue, there are others who have. Can I just put it on the record that we are not -- and I will not tolerate as Lord Chancellor any unintentional or intentional slide into tyranny as a result of the potential passage of these measures. This is all about balance. That’s all we’re trying to achieve.

And I’m sure that, through the debate in your lordships’ House, we will learn more, and have the sort of detailed debate, that I think that this particular clause deserves.