Declarations of war and prorogations of parliament should be protected from judicial challenge by new legislation, a prominent legal academic has told the Independent Review of Administrative law. In a striking divergence from other submissions published so far, Richard Ekins, professor of law and constitutional government at St John’s College, Oxford, says there is a strong case for parliament to legislate to restore what he says are the traditional limits on the scope of judicial review.
While such legislation ‘would obviously be controversial’, Ekins calls for legislation to declare a range of government actions non-justiciable. ’The list would include at least declaring war, dissolution, prorogation, appointing and dismissing ministers and making or unmaking treaties.’
Ekins is head of thinktank Policy Exchange’s Judicial Power Project, which was strongly critical of the 2019 Supreme Court ruling on prorogation.
The independent review, by crossbench peer and former justice minister Lord Faulks (Edward Faulks QC), is considering statutory intervention as one way of reforming the judicial review process. The idea has already been dismissed by the Law Society and Bar Council, which warned that legislation would require ‘a major law reform project’ in which the ‘risks of unintended consequences are very great’.
This view is echoed by at least one academic submission, from Professor Paul Daly of the University of Ottawa, who states that experience in Canada suggests that codification of the scope of JR is ’likely to cause uncertainty and provoke litigation’.
More than 70 responses have so far been submitted to the review’s call for evidence, according to a list compiled by the UK Administrative Justice Institute.