Constitutional gaslighting

Government evidence is no match for devastating academic critique

The government has published a summary of the evidence submitted by 14 departments to the independent review of administrative law chaired by Lord Faulks, which made limited recommendations for the reform of judicial review in proposals published by the government last month.

Though long-awaited, the evidence summary has been overtaken by publication of the government’s own proposals for reform. Mark Elliott, professor of public law and chair of the faculty of law at the University of Cambridge, wrote yesterday that these proposals “risk eviscerating judicial review” (my own term was “emasculating”). As if this was not objectionable enough, adds Elliott, “the government then proceeds to argue that all of this is to be done in the service of the rule of law”.

Prof Mark Elliott

Elliott’s critique, the first in a series of four short posts on the government’s response to Faulks, is devastating:

The government’s astonishing proposals amount to nothing other than an attempt to launch an assault on judicial review under the cover of promoting the rule of law. Even in a post-truth age, such constitutional gaslighting cannot be allowed to go unchallenged.

By contrast, the latest government document tells us very little. As a summary of evidence submitted to Faulks, it is deliberately incomplete: to maintain the “integrity” of the collective agreement process, dissenting voices have been excised. As the government admits,

this summary cannot necessarily cover every aspect of each of the government departments’ responses to the review panel’s call for evidence.

Some submissions provide some support the government’s proposals. But we do not know how many did not. We do not even know which 14 departments submitted evidence, though 11 departments provided statistical information:

• Home Office

• Ministry of Housing Communities and Local Government

• Department of Health and Social Care

• Department for Transport

• Attorney General’s Office

• Department for Digital, Culture, Media and Sport

• Department for Work and Pensions

• Department for Environment, Food and Rural Affairs

• Department for Education

• Department for Business Energy and Industrial Strategy

• Foreign Commonwealth and Development Office

Since we are told that the phrases such as “some departments” or just “departments” can mean a few, quite a lot or nearly all of the 14 who bothered to reply to Faulks, it is very difficult to know how much weight one should attach to paragraphs such as:

Generally, departments contended that judicial review could be seen as a tool used by some outside government to attempt to drive or influence government policy and public debate, rather than to raise legitimate concerns about the legality of a particular government decision.

or

Government departments emphasised that an effective decision making process must be one which considers the lawfulness of that decision. And some believed the pressures brought by the prospect of judicial review has the potential to create a chilling impact on how officials frame their advice to ministers, veering on the side of caution. Some departments commented that the threat of judicial review could prevent a department from acting in new and innovative ways.

or even

Many departments commented that there were strong arguments for certain procedural reforms. However, it was noted that the judicial review process in the main was clear and worked effectively.

Of rather more interest is an entirely separate paper from the Ministry of Justice, which also emerged yesterday — though far more discreetly. It is the UK government’s collectively agreed response to a call for evidence from the independent Human Rights Act review, headed by Sir Peter Gross.

I have written a separate post about it, which my paying subscribers can read here.

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