The attorney general has reheated Conservative attacks on judicial review
It is practically a rite of passage for many a UK government: settling on the view that what is stopping the administration from delivering on its promises is the existence of judicial review. Rather than, say, Whitehall going the wrong way about implementation, or pledges having been made on the basis of chronology or financial calculations that were adjacent to magical thinking.
It has taken Andy Burnham’s government 50 days to settle on JR as the roadblock to its ambitions.
JR is one target in a fairly extraordinary letter sent to ministers by Burnham’s attorney general, Ellie Reeves KC, chancellor of the exchequer, John Healey, and chancellor of the Duchy of Lancaster, Louise Haigh.
Headed ‘The simplification and agency of government’, it urges ministers to take more legal risks, before turning attention to JR.
‘In some instances it has become clear that the system of judicial review is out of balance. That is why the government took action last year to limit the number of attempts that can be made to bring a judicial review against nationally significant infrastructure projects, and why the Government has been advancing further reforms to limit the scope for judicial review where Parliament has had a say in authorising a project.
‘The government intends to progress these reforms, and to broaden the range of projects to which they can apply, from only energy projects to all nationally significant infrastructure projects. This will mean that transport, water and other types of major infrastructure can benefit from the parliamentary authorisation route once we have passed the necessary legislation.’
We were last here in earnest in 2020 when justice secretary Robert Buckland QC tasked Lord Faulks QC with reviewing what could be done about JR. When Faulks reported in March 2021, Buckland claimed the findings showed: ‘Judicial overreach increasingly threatens the rule of law and effective, democratic government.’
He added: ‘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.’
Which was in line with the arguments of right-wing thinktank Policy Exchange’s Judicial Power Project, but a total misrepresentation of the Faulks review’s findings. It left members of the review panel, though circumspect in public, fuming.
Having looked into the problems JR was alleged to be causing, they concluded, unanimously: ‘The independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers.’
They continued: ‘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.’
Government ministers feel the burden of delivering promises keenly. Public finances and growth are not where they would like them to be. Perhaps egged on by Whitehall, many also chafe at accountability.
Yet nothing about JR or the conduct of the courts has changed since 2021. A new review, if informed by evidence, would not reach a different conclusion to Faulks.
Among the ideas Buckland then consulted on, completely unsupported by the review’s findings, were ‘ouster clauses’ in legislation. These were a cunning ruse to shove lines into bills that said nothing in them could be challenged.
It was an extreme idea, ultimately lost in the political instability of the time. If Reeves, Healey and Haigh prevail upon the justice secretary to revisit it, it would be a sign of desperation.
For now, JR being pre-emptively raised as a reason for failing to deliver on political promises and public expectations reads like a sick note with no supporting pathology.
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