Faulks defends judicial review

QC says ministers are basing reforms on just a few cases

The government seems determined to press ahead with far-reaching reforms to judicial review — even though few of its preferred options were recommended by an independent review in a report published last week.

That review was chaired by Lord Faulks QC, a former Conservative justice minister. Given the breadth of views among members of his panel, it was not surprising that they could not agree on whether to support proposals that would codify judicial review or restrict its availability. In a piece published last October, I wrote:

…we can expect the government to treat Faulks’s well-balanced panel as something of a fig-leaf and press ahead with statutory controls regardless of what his review recommends.

And it’s now doing precisely that, while allowing just six weeks for consultation. As Professor Paul Craig noted yesterday,

the fabric of judicial review has existed for over 400 years. There is no reason for modification thereto to be subject to such tight time constraints.

Spin?

Of no less concern, though, are the government’s attempts to spin the panel’s findings in support of ministers’ preferred reforms. This was how the lord chancellor, Robert Buckland, summed up the inquiry’s conclusions in a statement to the House of Commons:

The report’s finding — that there is a growing willingness to accept an expansion of the remit of judicial review, whether this is in terms of more decisions being considered justiciable or the way in which courts review an exercise of power and the remedies given — is a worrying one.

In an interview for the BBC Radio 4 programme Law in Action to be broadcast this afternoon, I asked Faulks whether that was what his inquiry had found. He replied:

No, I don't think it really was our finding. I think we found that there were one or two cases, which we particularly pointed out, where there was considerable tension between what was legitimate to be considered by the courts and what was really a matter of politics. But those were particular cases. We did not think that there was an overall trend that you could extract from those particular cases.

I then asked Faulks about a press release published by the Ministry of Justice last Thursday. It said:

The panel found courts were increasingly considering the merits of government decisions themselves, instead of how those decisions were made — moving beyond the remit of judicial review.

Faulks did not think that was a fair summary of what his panel had said either:

There are some cases which we thought — and some of the people who made submissions to us thought — were crossing a line. But it’s one thing to say, well, there are one or two cases the result of which is questionable — to then go on and conclude that there’s an overall drift in one particular direction. And I think there’s a slight danger that you can go from the particular to the general.

The Faulks report

There were only two substantive recommendations on which Faulks and his panel agreed:

  • Limiting the availability of judicial review in immigration and asylum cases. Following a decision of the Supreme Court in R (Cart) v Upper Tribunal in 2011, it has been possible to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal. Because this extended process had led to so few errors of law by the First-tier Tribunal being identified and corrected, the panel recommended discontinuing the practice — in other words, overturning the Cart judgment by statute.

  • Giving courts the power to suspend quashing orders. At present, one of the remedies that can be granted in judicial review is an order quashing a decision taken by a public authority. But that takes effect immediately and retrospectively. Under these proposals, the court might indicate that an unlawful exercise of public power would be quashed automatically at some point in the near future unless parliament had legislated in the meantime to rectify the position. The decision in question would therefore become voidable rather than void.

Reaction to these proposals has been muted. There has been some doubt about the statistical underpinning of the Cart proposals — but Faulks has defended his reasoning. In principle, there should be no objection to giving the courts greater powers so long as they are entirely discretionary.

These were the areas where the panel made no recommendation for change:

  • Codification of the law: “the advantages of this are comfortably outweighed by the disadvantages.”

  • New legislation to define which areas should be non-justiciable and when the courts should defer or exercise restraint: “we do not recommend this course.”

  • Ousting the jurisdiction of the courts by statute in particular circumstances: to do so, “parliament would have to confront ‘hostility’ from the courts, careful parliamentary scrutiny and rule of law arguments.”

  • Changing the law on when a claimant has the necessary standing to bring a case: “we do not recommend [parliament] do so; and we are not in favour of any tightening of the current time limits on bringing claims for judicial review.”

And this was the panel’s resounding conclusion:

Our view is that the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action.

Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.

Catherine Callaghan QC, vice-chair of the public lawyers’ group ALBA, welcomed the panel’s report as a “careful and balanced piece of work that makes relatively modest recommendations for reform”. Interviewed for Law in Action, she said:

I think the most significant aspect of it is that Lord Faulks’s report makes it very difficult for the government to do what many of us had feared, which was to try and use this review to seriously inhibit or restrict the courts’ ability to review the legality of the government’s own actions.

She added, though, that the government wanted to press ahead in areas where the panel had not recommended reform. Giving the judges discretionary powers would be better than introducing a presumption or a requirement, she said.

The government’s response

The Ministry of Justice received the Faulks panel’s report at the end of January, editing it ahead of publication — in line with the principle of collective cabinet responsibility — to remove any mention of specific government departments (hence the references in paragraphs 2.63 and 2.64 to “a government department” and “another department”).

It’s not known whether the Ministry of Justice was among the departments whose proposals were not accepted by Faulks. However, its officials were sent all the written submissions that Faulks had received and drew on them to prepare the government’s response. That goes some way to explaining paragraph 58:

The government, in light of the excellent analysis in the report, also considers it worthwhile to consult on measures that were not recommended by the panel, but would complement their main proposals.

Starting with a characterisation of the panel’s analysis that Faulks had implicitly disputed — “the reasoning of decision-makers has been replaced, in essence, with that of the court” — the lord chancellor said his aim was “to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or parliament”.

Buckland accepted the panel’s recommendations for limiting the availability of judicial review in immigration and asylum cases. But he also wanted to reform ouster clauses — provisions that seek to oust the jurisdiction of the courts to review and overturn other powers. The lord chancellor gratefully accepted the idea of suspended quashing orders. But he wanted to introduce much greater changes to the remedies granted in successful claims for judicial review.

Ouster clauses

Implicit in the government’s proposals is that there is a distinction between something the Faulks panel did not recommend that the government should do — and something the panel did recommended that the government should not do. Just because Faulks didn’t support something, the government’s argument goes, it doesn’t mean we shouldn’t do it. But that analysis relies on selective quotation.

Thus the government notes with approval the panel’s conclusion that “parliament could oust or limit the jurisdiction of the courts in particular circumstances if there is sufficient justification for doing so”. But it seems to have overlooked what else the panel said on the subject:

Parliament has the power to legislate in such way as to limit or exclude judicial review. The wisdom of taking such a course and the risk in doing so are different matters. Indeed, the panel considers that there should be highly cogent reasons for taking such an exceptional course.

Moving on, the government says it wants to look at how ouster clauses could be made more effective in those specific and limited instances where there is sufficient justification. “As a core principle, the government considers that ouster clauses legislated for by parliament should not be rendered as of no effect, and invites consultees to put forward proportionate methods for achieving this.”

I’m sure others in government will be delighted to take on this challenge.

Under the government’s proposals, the courts would still be able to get round a clause that attempted to oust their jurisdiction — but only in the most exceptional circumstances, such as a collapse of fair procedure:

This “denial of procedural justice” would, we propose, be a threshold far higher than the current ground of procedural impropriety… The government hopes that such a high threshold would defend against matters of outright injustice while preserving the effect of ouster clauses and the certainty they can bring.

Remedies

The government is considering whether to give judges the discretion to make a remedy prospective-only in nature. If implemented, that proposal would save the government the cost of paying compensation to people who had been denied their rights in the past. And that, ministers want us to believe, would “enable the government to continue to spend on improving the lives of its citizens”.

Of course, the citizens whose lives would not be improved by this reform would be the ones who had won the case:

It is recognised that this could lead to an immediate unjust outcome for many of those who have already been affected by an improperly made policy, but this would be remedied in the long-term. It is also recognised that the [Faulks] report made no recommendations in relation to this measure.

But something similar already exists in Scotland, the government pointed out. And parliament could prescribe the factors that the courts would have to take into account.

As if that’s not enough, the government is considering either a presumption that remedies will be prospective-only in relation to statutory instruments or even a requirement that remedies in such cases should be prospective-only unless there is an exceptional public interest requiring a different approach. So secondary legislation that people had previously relied on would not be overturned.

And while we’re on the subject, says the government, let’s have a presumption that any quashing order should be suspended or even a requirement that all quashing orders will be suspended unless there is an exceptional public interest not to do so.

Finally, says the government, how about legislation making it clear when a decision is void and when it’s merely voidable? Here are its options:

  • Only a lack of competence, power or jurisdiction would lead to the power being declared null and void. The government accepts that it cannot use a power that it simply does not have. However, a court would have the power to suspend the effects of a nullity declaration.

  • Presumption against the use of nullity. This would mean that, when faced with an error, the court should err on the side of concluding that the error does not lead to a conclusion that the decision was outside the competence of the decision-maker.

  • Clarifying the distinction between a decision taken without the power to take it and the wrongful use of that power. The former would be void and the latter voidable.

  • Legislating to ensure that all standard public law grounds of review except lack of power would make a decision voidable rather than void. That would include breach of the principle of legality and overturn the effect of the landmark Unison case.

  • Legislating to ensure that if a decision-maker has the power to take a decision the power is not lost because of an error, however egregious, made by the decision-maker. That would overturn an aspect of the landmark Anisminic case.

Conclusions

The Faulks review has narrowed the government’s focus, allowing it to concentrate on the reforms it regards as the most important. It sees its proposals as incremental rather than revolutionary — fixing technical-sounding bit of the system such as ouster clauses and remedies. Others may disagree.

If implemented, these changes would certainly make things easier for the government. Ministers would no longer need to worry about exceeding their powers: if courts rule against them, they would simply ask parliament to put things right. Better still from the government’s point of view, parliament could stop the judges interfering next time by ousting their jurisdiction. An effective ouster clause has always been the elusive unicorn of administrative law: these proposals will bring it tantalisingly close.

So lawyers and others will now have to respond to yet another consultation exercise. They will certainly argue against the government’s most extreme options — that remedies of various kinds must be suspended or prospective-only unless the circumstances are exceptional. But that’s probably just a stalking horse to make a presumption appear more palatable. The only acceptable outcome must be an unfettered discretion for the courts.

Buckland told parliament he wanted to protect the judges against “unwanted political entanglements”, encouraging “solutions to be found through political will rather than legal dispute”. That’s an admirable approach and would be fine if governments could be relied on to meet their side of the bargain. In the period between the Brexit referendum in 2016 and the general election at the end of 2019, that was a rash assumption to make.

The lord chancellor wants to restore a “proper balance” to the British constitution. Who could disagree with that aspiration? But emasculating the courts is no way to achieve it.

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