Last week the government published the Judicial Review and Courts Bill, the result of March’s Faulks Report on Judicial Review and a government led consultation that followed. After Lord Chancellor, Robert Buckland, distorted the conclusions of the Faulks Review, which held that JR was functioning properly and was not encroaching on politics as Buckland argued, it appeared that an attack on JR would emerge. However, the JR Bill is not the anticipated assault.
‘Politics by other means’: Background to the Bill
The 2019 Conservative Party Manifesto promised a review into whether the courts were being “abused to conduct politics by other means.” Unsubstantiated accusations of courts increasingly encroaching on political and policy questions have become a consistent theme among Tory politicians, press and thinktanks since 2016. Policy Exchange’s Judicial Power Project, aptly derided as an ‘Executive’ Power Project, has been key in promoting mistruths and half-truths about judicial review in England and Wales. Paul Craig, in a compelling article looking at the (lack of) quantitative basis for judicial review reform, highlights the intellectual distortions of the JPP. For example, the JPP focuses upon 50 supposedly ‘problematic’ cases in UK and European law as evidence of ‘judicial overreach’ but, as Craig points out, summarising complex cases in a couple sentences, sticking them together in a list and calling them ‘problematic’ does not sustain accusations that judges are increasingly stepping into politics. Instead, ‘the casual observer might well wryly conclude that if the courts were intent on judicial overreach they were not very good at it’, with only .015% of public law cases raising the principle of legality as outlined in Simms (R (Simms) v Home Secretary [2000]), a focus of the MOJ’s Consultation as evidence of judicial overreach.
The Faulks Panel, chaired by the former Justice Minister and Conservative Peer, Lord Faulks QC, similarly dismisses accusations of sustained judicial overreach. Its report held that, aside from so-called ‘Cart’ judicial reviews, which allow migrants to apply to the High Court for judicial review if their appeal is rejected by both chambers of the immigration tribunal, judicial review was functioning as expected and that no fundamental changes were needed. In response, the government wilfully distorted Faulks’s conclusions. The Lord Chancellor told the House of Commons, in March 2021, that the government would “like to go further to protect the Judiciary from unwanted political entanglements” in order to “restore trust in the judicial review process.” At best, this signalled a desire to significantly curb judicial power in the UK and erode a vital check on executive power.
Damp Squib? What’s in the Bill:
Yet, the JR and Courts Bill is far milder than feared. Helen Mountfield, a QC at Matrix Chambers, called the proposals a ‘damp squib’ and suggests that a holistic attack on ‘the rule of law has been seen off, again, for now.’ Lord Pannick QC, who acted for Gina Miller in two landmark constitutional law cases that brought the ire of government in 2016 and 2019, welcomed the proposals, as did Lord Anderson QC, the former Independent Reviewer of Terrorism Legislation.
The Bill includes, in its 48 clauses total, just 2 clauses concerning judicial review. Helen Mountfield summarises these changes: “Clause 1 proposes to grant courts a discretion to defer or limit the effect of a quashing order (an already discretionary power to “undo” an unlawful action if justice requires) … Clause 2 abolishes the right to challenge decisions of the Upper Tribunal where it has refused permission to appeal. The Upper Tribunal was introduced in 2008 to rationalise administration of justice in various other tribunals and is itself a “superior court of record,” equivalent to the High Court. Since these so-called Cart judicial reviews (named for the 2011 case which established them) are available only in a very limited category of cases in any event, this is not a very dramatic change either.” Veteran legal commentator Joshua Rozenberg suggests that the clause used to remove the Cart judgment might also be used as a framework for further ‘ouster’ clauses (which attempt to remove the court’s jurisdiction) in other legislation. This, however, is yet to be seen.
Why is this the case? Numerous legal commentators have suggested that the Supreme Court has become more executive-minded under Lord Reed’s presidency relative to Lady Hale, removing the need for a fundamental assault on the judiciary. Cases such as Begum, with legal commentator David Allen Green (amongst others, including Tom Hickman, who acted in the case) highlighting how the judgment consistently sees the case from the Home Secretary’s perspective, and SC and others v. DWP, with Lord Reed taking a shot at so-called ‘campaigning organisations’ bringing cases, convey this executive-minded shift. Equally, the combination of an independent report which only called for limited changes, and a consultation following this that also did not go Buckland’s way, there may not have been the political appetite for broad changes to judicial review. And, besides, Buckland still got his headlines on ‘sorting’ judicial review without actually changing much, achieving the positive political effects hoped for.
Of course, while much focus has been dedicated to its judicial review provisions, the JR and Courts Bill has some important implications for courts and open justice also. Evening Standard legal commentator Tristan Kirk suggests that the JR and Courts Bill poses “a massive threat” to open justice. If passed, the Bill will allow for indications of plea to be given in writing, allocation of trials to magistrate or crown courts to be done administratively, committals to crown court without hearing, if guilty plea indicated and courts will be allowed to progress with cases in the absence of defendants so long as a lawyer is sent to represent them. Ultimately, as Kirk argues, this will make it more difficult for court reporters to follow cases, harming public understanding of criminal cases and protecting celebrities, politicians and other public figures from open scrutiny, with no requirement to attend first appearances.
Conclusion: Threats to human rights in UK persist
Despite the JR and Courts Bill being a welcome pause on the government’s wide-ranging assault on civil liberties and checks on its power, threats to human rights in the UK remain numerous. The Police, Crime, Courts and Sentencing Bill passed the Commons before the summer recess and is due before the House of Lords in September for its second reading. Its authoritarian provisions restricting the right to protest remain in the Bill. These include allowing Police to impose conditions on a protest if there is either a level of noise that could cause ‘serious disruption to the activities of an organisation which are carried on in the vicinity of the procession’ or if the noise might cause a ‘relevant’ and ‘significant’ impact on persons in the vicinity. Other concerning aspects include its provisions which impinge on the rights of Gypsy, Roma and Traveller communities in the UK, which might criminalise unauthorised encampments, despite current legislation being described as ‘draconian’ by a number of High Court judges.
Proposed amendments to the Official Secrets Act, as part of a Home Office consultation on the Act, are more worrying. Arguing that press disclosures can be worse than spying, the Priti Patel endorsed consultation proposes increasing maximum sentences for ‘unauthorised disclosures’ including ‘onward disclosure’ in the press. The Home Office wishes to trash the Law Commission’s proposals for a ‘public interest defence’ for civilians and journalists, arguing that unauthorised disclosure could not possibly be in the public interest. It represents yet another attempt by the Home Office to protect the executive from scrutiny via draconian law-making, placing journalists on the same level as foreign spies.
And attacks on JR have not disappeared yet, with the Independent Human Rights Act Review due to report this summer. The Human Rights Act is a vitally important piece of legislation, enabling numerous challenges to the decisions of public bodies and government where rights contained in the European Convention on Human Rights might have been breached. With Buckland implying on Twitter that the HRA would be replaced by a British Bill of Rights, it appears that this government’s broad conflict against checks, balances and human rights is far from finished.
Sources:
9. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875313 – Paul Craig Paper on JR