The ongoing Independent Review of Administrative Law should recommend restoring traditional limits.
There is a strong case for parliament to legislate to restore traditional limits on the scope of judicial review.
Parliament should enact legislation specifying that the object of statutory interpretation is the intention of the enacting legislature, which is to be inferred from the statutory text read in the context of its enactment. Such legislation would be a restatement of existing law, but its significance is that it would make it much more difficult for courts to invoke the principle of legality to rationalise imposing on the statutory text a meaning that parliament clearly did not intend. The point might be made more forceful still if the legislation in question also reversed high-profile instances of statutory misinterpretation or perhaps even recited in a preamble the mischief that the statute was intended to address and correct.
In addition, parliament should amend the Interpretation Act to provide that the Carltona principle applies unless the contrary intention is made out. This would correct the instability in our law introduced by R v Adams, affirming that the Carltona principle is indeed the default against which parliament legislates.
Parliament should also amend section 1 of the Constitutional Reform Act 2005, which has no obvious legal effect, save to introduce an uncertain qualification to the propositions otherwise made out in the act. The section was a rhetorical flourish, designed to reassure senior judges that the change in the lord chancellor’s role would not imperil their constitutional position. An amendment should make clear, inter alia, that the act does not authorise the Supreme Court to serve as guardian of the constitution and that the court’s duty is instead to adjudicate disputes in accordance with law. This would help to address some of the worst excesses in recent years, as well as the undercurrent that is likely to invite future excesses.
Parliament should consider enacting legislation that would specify factors or principles relevant to substantive review, which courts would have to take into account in adjudicating any challenge to the lawfulness of an exercise of public power. The factors might include the extent to which the decision maker is subject to parliamentary accountability and the extent to which the decision involves polycentric considerations or high policy. Such specification might do little more than recall and affirm principles of judicial restraint already long-established by case law. However, the point of the legislation would precisely be to make such principles authoritative and to bolster them against erosion in future.
In relation to the particular (growing) problem of proportionality review, parliament should legislate to specify that no act or decision of a public body may be quashed or otherwise held to be unlawful on the ground that it is disproportionate, save as required by the Human Rights Act. This would categorically forbid the Supreme Court from introducing proportionality as a general ground of review. Legislating would partly address the problem of judicial invention of common law rights. If or when a clear legal right could be identified and enforced without proportionality analysis, the right could be upheld. But if the right were simply an occasion for the court to review the proportionality of government action, it would no longer support the extension of judicial review into new contexts.
There is a case for general legislation to restore to our legal tradition the idea of non-jurisdictional errors of law. It is often plausible to infer that parliament confers a jurisdiction on some public body, within the scope of which the body should be free to act. On this view, only some errors of law, namely those that involved a very clear departure from the terms of the empowering statute, would render the decision ultra vires and void ab initio. Other errors of law might be subject to correction on review, and the decision rendered voidable, subject to their gravity and consequences.
Parliament should legislate to protect particular domains of government action, and particular types of decision, from challenge by way of judicial review proceedings. Legislation about prorogation and/or dissolution, in the course of repealing the Fixed-term Parliaments Act, would involve such provision, without which the political constitution will remain highly exposed to political litigation.
In particular, parliament should consider enacting legislation to list prerogatives that have traditionally not been subject to judicial control and to specify in terms that they are non-justiciable. The list would include at least declaring war, dissolution, prorogation, appointing and dismissing ministers, and making or unmaking treaties.
In addition to the substantive reforms outlined above, parliament should consider introducing much tighter restrictions on calling evidence in the course of judicial review proceedings, including evidence that is likely to be difficult for courts competently to evaluate. Relatedly, there are reasons to tighten the rules of standing, which are extremely loose. Finally, there is a case for legislation to overhaul the rules of disclosure, which force government to release much information that should not be made public and which changes the character of judicial review proceedings, with judges often ending up considering in detail the inner workings of government.
Legislating to oust, or pre-empt, judicial review would obviously be controversial and there would be a risk that such legislation would go too far. However, there is a very strong argument for legislation in a range of contexts, including government formation (and the relations between Queen, ministers and parliament more generally), foreign policy, military action, and high policy, including macroeconomic and social policy. It might be easiest to justify legislation when it clearly restates limits long accepted by UK judges and/or when it responds to litigation that has breached such limits or threatens future breach.
Richard Ekins is head of Policy Exchange’s Judicial Power Project and professor of law and constitutional government, University of Oxford. This is a lightly edited excerpt from Professor Ekins’ submission to the Independent Review of Administrative Law.