J1446 Constitution Society Judicial Review WEB-22

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Report

Judicial Reviewand the Rule of LawWho is in Control?

Amy Street


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JUDICIAL REVIEW ANDHE RULE OF LAW

WHO IS IN CONROL?

Amy Street


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JUDICIAL REVIEW AND THE RULE OF LAW2

First published in Great Britain in 2013 by

Te Constitution Societyop Floor, 61 Petty FranceLondon SW1H 9EUwww.consoc.org.uk Te Constitution SocietyAll rights reserved. Without limiting the rights under copyright reserved above, nopart o this publication may be reproduced, stored or introduced into a retrievalsystem, or transmitted, in any orm or by any means (electronic, mechanical,photocopying, recording or otherwise), without the prior written permission o boththe copyright owner and the publisher o this book.


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3JUDICIAL REVIEW AND THE RULE OF LAW

Contents

About the author 5

Introduction 6Executive summary 8

Judicial review and the rule o law 12

Do the government proposals undermine the rule o law? 20

First wave o reorms 20

Further reorms 22

Standing 23

Rebalancing financial incentives 27

Procedural deects 29

International human rights obligations and the EU 30

Approach to the governments specific proposals 31

Further analysis 32

Could Parliament legislate contrary to the rule o law? 37

How might the judiciary respond to legislation contrary 40to the rule o law?

What are the potential wider constitutional consequences? 49

Discussions about the rule o law 49

Parliamentary sovereignty 50


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Codified constitution 50

Lord Chancellors oath and duties 51

Conclusion 53


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About the author

Amy Street is a barrister at Serjeants Inn Chambers. She hasappeared in leading cases up to the Supreme Court, especially

in the fields o administrative law and human rights. In 2012she co-wrote (with Richard Gordon QC) a report, SelectCommittees and Coercive Powers Clarity or Conusion?, praisedin Parliament as very important (Shadow Chancellor Ed Balls),one o the best considerations o the issues I have seen (Clerko the Commons Sir Robert Rogers), and reported widely in themedia. Amy is Research Director o Te Constitution Society

and legal consultant to BBC Radio 4s legal discussion series,Unreliable Evidence.

Acknowledgements

Grateul thanks to Richard Gordon QC or invaluable supportand Te Constitution Society or commissioning this paper.


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Introduction

Government proposals in relation to judicial review mostrecently in its September 2013 consultation paper, Judicial

Review: Proposals or urther reorm have attracted controversy.Following a first wave o procedural reorm earlier in 2013,the urther reorm proposals seek to address the governmentsconcerns that judicial review is hampering economic recoveryand growth, and is being used inappropriately as a campaigningor delaying tactic. Te urther reorm consultation paperrequests views in six areas:

planning challenges the question o standing, ie who is entitled to apply or

judicial review

how the courts deal with minor procedural deects, andwhether this can be improved

the use o judicial review to resolve disputes relating to thepublic sector equality duty

whether the current arrangements or costs provide theright financial incentives, including legal aid

the scope or making greater use o leaprogging orders, sothat appropriate cases can move quickly to the Supreme Court.

Others will set out their cases or and against the governmentproposals and examine them in detail. Te purpose o this report

is different: to put the proposals in their wider constitutionalcontext.


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Do the governments proposals threaten the rule o law? I so, isParliament nevertheless ree to legislate as it wishes? What doesthe courts track record tell us about the potential reaction o thejudiciary to a proposal which it may perceive as threatening therule o law? What implications may these proposals have or ourconstitutional arrangements, even beyond the field o judicialreview?

Te answers to these questions do not dictate what the governmentand Parliament may wish to do in relation to judicial review.However, judicial review lies at the heart o our constitutionalarrangements. Reorm without a wider debate about the potentialconstitutional consequences could be unwise.

Tis report seeks to generate and contribute to that widerdebate.

Summary

Tis report steps back from the controversy of the currentproposals to reform judicial review and explores the widerconstitutional context. It seeks to generate and contribute to wider debate about the potential constitutional consequences.Such debate has relevance for informed decisions by thegovernment and Parliament.


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Executive summary

Tis report steps back rom the controversy o the currentproposals to reorm judicial review and explores the wider

constitutional context. It seeks to generate and contributeto wider debate about the potential constitutionalconsequences. Such debate has relevance or an inormeddecision by the government and Parliament.

Te courts ability to subject decisions o the executive to anindependent review o lawulness defines our constitutionalclimate. Tere is debate over the meaning o the rule o

law; but it may be thought to have a core meaning or thejudiciary in the context o judicial review. Tere is debatetoo over whether it is the will o Parliament (as traditionallyunderstood) or the constitutional principle o the rule o law(as more recently and controversially suggested by some)which provides the theoretical justification or the courtsjudicial review jurisdiction. It may be thought sensibleto take this debate into account whichever justification

or judicial review may be avoured: i Parliament were tolegislate in a way which the courts considered to be contraryto the rule o law, the courts would need to conront whetherthey consider their primary obligation to be to the will oParliament, or to the constitutional principle o the rule olaw. I the courts were to conclude the latter, they may eeljustified in not applying Parliaments will.

Te courts have developed a liberal test or standing sothat a judicial review claim may proceed depending on a


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number o actors, even i the claimant has no direct interest.A rationale is that insistence upon a particular interest couldprevent the matter being brought beore the court, and thatin turn might disable the court rom perorming its unctionto protect the rule o law. Te government proposes to ruleout claims unless the claimant has a direct interest. A clearcase may be made out that this proposal would contravenethe rule o law, because it would put some unlawul executive

action, which the courts would currently review in thename o the rule o law, beyond the reach o the courts. Tegovernments proposal may be seen as seeking in substanceto enact a constitutional change. For the purpose o urtheranalysis, this paper will take the proposal to restrict standingas an example o a measure which the government may seekto advance, which on one clear analysis, is contrary to therule o law as understood by the judiciary in this context.

Tere may be a case or the government to use primary ratherthan secondary legislation to implement proposals whichmay be thought by the judiciary to threaten the rule o law.Even i Parliament sought to pass primary legislation which iswidely thought to be contrary to the rule o law, there are noconstitutional requirements or such legislation to be treateddifferently rom other legislation, during its passage. Under

a traditional understanding o Parliamentary sovereignty,Parliament may pass whatever laws it likes. However, ananswer to the question whether Parliament could legislatecontrary to the rule o law may in substance be incompletewithout addressing the question o how the judiciary mightrespond to such legislation.

Under a traditional understanding o Parliamentary

sovereignty, legislation will be applied by the courts and thereis no reason to question this most o the time. However, there


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is some judicial support or the proposition that while thesupremacy or sovereignty o Parliament is still the generalprinciple o our constitution, the principle is not absoluteand, because the principle was created by judges, judgescould decide not to ollow it in certain circumstances, suchas an attempt to abolish judicial review. Tis proposition iscontroversial and there is no consensus about it. However,it may be unwise or the government and Parliament to

assume, simply because the judiciary in this country haveso ar not purported to review primary legislation or itscompliance with constitutional principles, that this is a fixedconstitutional arrangement. Furthermore, the judiciaryhave considerable powers o statutory interpretation whichthey have used in the past to disobey Parliaments intention,while maintaining that they are upholding it. Te judiciarymight find it easier to use such powers i Parliament wereto maintain that it is acting in accordance with the rule olaw, because this may justiy the judiciary in interpretinglegislation not in accordance with its wording, but inaccordance with judicial interpretation o what the rule olaw entails.

Legislation restricting judicial review which is thought bythe judiciary to be contrary to the rule o law has potentially

wide urther constitutional consequences including: Detracting attention rom any less controversial

proposals which may be suggested to make thejudicial review process more efficient.

Potentially triggering action by the courtswhich might make the constitutional positionin relation to the continuing significance o

Parliamentary sovereignty less certain.


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Making the case or a codified constitutionagainst which primary legislation could bereviewed seem more attractive, i the potentialalternative may be unregulated disobedience bythe courts o Parliaments will.

Potential challenges to and questions about the role o the Lord Chancellor.

Proposals to restrict judicial review have the potential tosignificantly alter the constitutional balance o power. Suchreorm proposals have the potential to alter the constitutionalbalance in ways which the government and Parliament maynot have anticipated. Te result could be a constitutionalcrisis o uncertain effect and proportions. Reorm o judicialreview could properly orm the terms o reerence or an

independent inquiry which could be used to inorm thegovernment and Parliament about the possible and likelyconstitutional effects o such reorms. Tere are three possiblecourses o action. First, the government or Parliament maydecide to do nothing. Secondly, efficiency reorms may betaken orward, potentially ollowing a review to considerhow best to introduce reorms consistent with the rule olaw. Tirdly, judicial review reorm may go beyond efficiency,

including measures which have the potential to destabiliseexisting constitutional arrangements and understandingsand even to provoke a constitutional crisis. It may be thought,thereore, that great caution should be exercised in relationto option three. Both government and Parliament on the onehand, and the judiciary on the other, may have competingclaims as to how best to protect the public interest in relationto judicial review. Ultimately, restraint rom at least one orthe other may be required in order to avert a crisis.


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Judicial review and the rule of law

Judicial reviewcan be characterised as the rule o lawin action

Judicial Review: Proposals or urther reormconsultation paper, Ministry o Justice, September

2013, paragraph 21

A claim or judicial review has a special quality which sets itapart rom other orms o litigation: it is a claim against thegovernment1 which may result in the governments unlawulactions being quashed. Perhaps we have come to take its

existence or granted, but its key elements are striking: not onlydo individuals2have the power to subject government decisionsto an independent review o lawulness, but such power isexercised on the premise that the government abides by theoutcome in its exercise o executive power.3Judicial review thusdefines our constitutional climate. It plays a key role in ensuringthat the executive acts only according to law. Without it, we are

closer to an authoritarian or even totalitarian state. With it, welive4under the rule o law.

While the rule o law is a amiliar phrase, it has no universallyagreed meaning. Its meaning has been the subject o considerable

1 Both central government and other public bodies.

2 And organisations and other public bodies.

3 Although it could seek to introduce legislation in Parliament to authorise itsuture conduct.

4 At least with regard to the aspects o the rule o law to which judicial review isrelevant.


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academic debate, which can be crudely divided into theories othe rule o law as:

Formalist or thin: under these theories the concept requiresthat laws must merely comply with certain ormal rules inorder to be valid, irrespective o their content; a repressiveand murderous regime could meet the rule o law under thisdefinition.

Substantive or thick: this version o the rule o law judgesthe content as well as the orm o law, requiring substantiverights to be recognised.5

Tere are many contrasting theories within these two categories.6

Our system o judicial review includes both procedural andsubstantive elements7 and thus is probably best described asreflecting a version o the thick understanding o the rule o law.

Despite there being no established definition among the judiciaryo the rule o law, there may be thought to be sufficient judicialdicta to show that the rule o law does have a core meaning or thejudiciary. It is repeatedly invoked by judges to explain the basisand extent o their judicial review jurisdiction. See or examplethe ollowing statements by law lords:

5 Lord Bingham reerred to the thin and thick definitions: Bingham, om, TeRule o Law, Allen Lane, 2010, pp6667

6 Te significance o the rule o law goes beyond judicial review. Other claimedelements o the rule o law include the accessibility o, and equality beore, the law.See generally Bingham, om, op cit

7 Craig, Paul, Te Rule o Law, paper included as Appendix 5 to House o Lords,Select Committee on the Constitution, 6th Report o Session 20062007, Relationsbetween the executive, the judiciary and Parliament(2007), p101. Te principlesbehind the constraints imposed on government under judicial review include

legality, procedural propriety, participation, undamental rights, openness,rationality, relevancy, propriety o purpose, reasonableness, equality, legitimateexpectations, legal certainty and proportionality.


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Tere is however another relevant principle whichmust exist in a democratic society. Tat is the ruleo lawTe principles o judicial review give effectto the rule o law. Tey ensure that administrativedecisions will be taken rationally, in accordancewith a air procedure and within the powersconerred by Parliament8

the rule o law enorces minimum standards o

airness, both substantive and procedural.9

Tese dicta are reflected in Lord Binghams expression o theparticular requirement o the rule o law which is relevant tojudicial review:

Ministers and public officers at all levels mustexercise the powers conerred on them in good

aith, airly, or the purpose or which the powerswere conerred, without exceeding the limits osuch powers and not unreasonably.10

Te question arises whether there is any broader societal consensusas to the meaning o the rule o law in the United Kingdom as itrelates to judicial review. It may be thought reasonable to postulate

a general core consensus in our society that it should be possibleor the courts to review executive action on grounds not merelyo whether the action has a basis in established law, but also ongrounds such as reasonableness, airness, and compliance with

8 Regina (Alconbury Developments Ltd and Others) v Secretary o State or theEnvironment, ransport and the Regions [2003] 2 AC 295, paragraph 73 per LordHoffmann

9 Regina v Secretary o State or the Home Department, Ex parte Pierson [1998] AC539, 591F per Lord Steyn

10 Bingham, om, op cit, p60


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certain basic rights.11Otherwise, it may be said, our constitutionalarrangements risk becoming authoritarian or even totalitarian(despite being statistically democratic), because a government,once elected, could exercise executive power unreasonably,unairly, and contrary to the most undamental o human rights.I this attempt at assessing a general societal consensus is correct,this would represent a consensus that our collective understandingo the rule o law is a version o a thick definition.

However, a secondary question then arises can such aconsensus be postulated in relation to issues which may not berecognised by members o society generally as being at the hearto judicial review, such as the test or who is permitted to bring ajudicial review claim? Tis is more difficult. It is not obvious thata judicial view o the constituent elements o the rule o law willcoincide with what most people think.

Tese considerations are relevant because it may be importantto identiy whose view about the meaning o the rule o law inrelation to judicial review matters, and why. It may be thoughtthat a sensible way o approaching this is as ollows:

Te judiciarys view about the meaning o the rule o lawin relation to judicial review matters, because it alls tothe judiciary to apply any relevant legislation passed by

Parliament. I there is a difference o view about the meaningo the rule o law, as it applies to judicial review, as betweenParliament on the one hand, and the judiciary on theother hand, this might give rise to a disagreement betweenthose two branches o state. Te potential or, and possibleconsequences o, such a disagreement will be explored in thispaper.

11 Te role o rights in the rule o law is controversial, but a core o rights, includingthe right to lie, may be thought likely to be accepted or present purposes.


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Te publics view about the meaning o the rule o law inrelation to judicial review matters, because all three o ourconstitutional players (the government, Parliament andthe judiciary) may plausibly claim to be acting in the publicinterest when proposing, making or interpreting the law inrelation to judicial review. Tis act highlights a undamentaltension within our constitutional arrangements about whichbranch o state can best claim to represent the public interest

in specific circumstances, and what the public interestmeans. For example, the government may legitimately havein mind a majoritarian conception o the public interest,whereas the judiciary may prioritise the need to identiyenduring values which protect all, including minorities.

When invoking the rule o law, this paper will ocus on the ruleo law as may be understood by the judiciary. Tis is because it

is this view which will influence the likelihood o any potentialdisagreement between the judiciary and Parliament.

On the ace o the urther reorm consultation paper, thegovernment says that judicial review, a largely judge-developedprocedure,12 is a maniestation o the rule o law. Whether thegovernment understands the rule o law in the same way as thejudiciary will also be explored in this paper.

While a creature o the common law, the rule o law has now alsobeen recognised (although not defined) by statute, namely theConstitutional Reorm Act 2005, which states:

Tis Act does not adversely affect

(a) the existing constitutional principle o the rule o law,or

12 Paragraph 21


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(b) the Lord Chancellors existing constitutional role13inrelation to that principle.

and requires the Lord Chancellor to swear the ollowing oath(emphasis added):

I, , do swear that in the office o Lord High Chancelloro Great Britain I will respect the rule of law, deendthe independence o the judiciary and discharge my duty

to ensure the provision o resources or the efficient andeffective support o the courts or which I am responsible.So help me God.

Parliament has been mentioned above, but where does it fit inour understanding o judicial review and the rule o law? Tecourts judicial review jurisdiction is justified by the notion thatthis procedure merely enorces the will o Parliament, by ensuring

that public bodies do not exceed the powers given to them bythe legislature. Tis theory (ultra vires) elevates the power oParliament over the judiciary. Ultra vires has been described asthe juristic basis o judicial review.14

Tere has been academic debate about the merits o thisanalysis. A competing theory reported to be gaining increasingacceptance,15but remaining controversial, is that the justification

or the courts judicial review jurisdiction derives not rom thewill o Parliament, but rom the courts role in enorcing the ruleo law as a constitutional principle. Under this theory, the courtsrole has not been ordained by Parliament,16rather it derives rom

13 Tis is not defined either.

14 Wade & Forsyth,Administrative Law, 10th Ed, 2009, p30

15 Auburn, Jonathan, Moffett, Jonathan & Sharland, Andrew, Judicial Review:Principles and Procedure, Oxord University Press, 2013, paragraph 1.12

16 Although as described above, the rule o law as a constitutional principle is nowreerred to in statute.


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what the courts have in act done and said, and is thus part o ourcommon law. Generally, upholding the rule o law will includeupholding the will o Parliament. However, i Parliament were tolegislate in a way which the courts considered to be contrary tothe rule o law, the courts may on this competing theory considerthat their primary obligation to the constitutional principleo the rule o law justified them in not applying Parliamentswill. Tis theory thus elevates the power o the judiciary over

Parliament in extreme circumstances.

Tis competing theory has been strongly criticised and whetherit has orce is the subject o intense debate.17 But whichevertheory is correct, it may be thought sensible to take this debateinto account when imagining how the judiciary might respondin extreme circumstances.

Te urther reorm consultation paper raises the real possibilitythat the government may introduce legislation restricting judicialreview which may be thought by the judges to contravene therule o law in that it prejudices the ability o the courts to holdthe executive ully to account. Tat raises the ollowing questionswhich will be explored in this paper:

Do the urther reorm proposals undermine the rule o law?

Could Parliament legislate contrary to the rule o law?

How might the judiciary respond to legislation contrary tothe rule o law?

What are the wider constitutional consequences?

17 See or example Wade, op cit, p33


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Summary

Te courts ability to subject decisions of the executive to anindependent review of lawfulness defines our constitutionalclimate. Tere is debate over the meaning of the rule of law; butit may be thought to have a core meaning for the judiciary inthe context of judicial review. Tere is debate too over whetherit is the will of Parliament (as traditionally understood) or theconstitutional principle of the rule of law (as more recently andcontroversially suggested by some) which provides the theoreticaljustification for the courts judicial review jurisdiction. It maybe thought sensible to take this debate into account whicheverjustification for judicial review may be favoured: if Parliamentwere to legislate in a way which the courts considered to becontrary to the rule of law, the courts would need to confrontwhether they consider their primary obligation to be to the will

of Parliament, or to the constitutional principle of the rule of law.If the courts were to conclude the latter, they may feel justified innot applying Parliaments will.


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Do the government proposalsundermine the rule of law?

Notwithstanding the constitutional significance o judicialreview, some reorms o judicial review will have little or noconstitutional significance. For example, reorms to make theprocedure more efficient may not be constitutionally significantin terms o being perceived by the judges as eroding the rule olaw. However, there are two caveats. First, great caution wouldbe needed to ensure that reorms in the name o efficiency didnot in act threaten the rule o law, as perceived by the judiciary,

or example because they materially restricted access to thecourts. Secondly, there may not be an entirely clear dividing linebetween mere efficiency reorms on the one hand, and reormswhich may be relevant to whether judicial review meets thejudiciarys understanding o the rule o law on the other. TeBingham Centre or the Rule o Law has, in act, established areview specifically to consider and report on possible ways oimproving judicial review procedures, to save and protect publicunds, in a manner consistent with the rule o law.18

First wave of reforms

Te government has already taken orward a first wave o judicialreview reorms:

18 Launched on 2 October 2013, the Review aims to issue an interim report by theend o 2013 and a final report in early 2014. See www.biicl.org/binghamcentre/JRinquiry/


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shortening the time limit or bringing a judicial review romthree months to six weeks in certain planning cases and tothirty days in certain procurement cases, bringing them intoline with the time limits or statutory appeals;

removing the right to an oral permission hearing where thecase is assessed by a judge as totally without merit on thepapers; and

introducing a ee or an oral renewal hearing, wherepermission has already been reused by a judge on the papersbut the claimant asks or the decision to be reconsidered ata hearing.19

Tese reorms ocused on procedure and administration andwere ostensibly anodyne.20 O themselves, there is a case orsaying that they were not constitutionally significant.

However, potentially more significant was the tone o the proposalsand the political rhetoric accompanying them, revealing, in theopinion o a leading constitutional lawyer, a scarcely concealedimpatience o the executive with what it implicitly perceives tobe an unnecessary constraint on its powers.21Tere is thereore acase or saying that even the first wave o reorms, viewed broadlyand in context, heralded a new climate in the governmentsattitude towards judicial review. Tey represented the first timethat the Government had mounted a head-on attack on judicialreview.22

19 See paragraphs 23 o the urther reorm consultation paper.

20 Gordon, Richard,Judicial review storm clouds ahead?J.R. 2013, 18(1), 15

21 Gordon, op cit

22 Gordon, op cit


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Further reforms

In its urther reorm consultation paper the Government says itseeks to address three issues:23

the impact o judicial review on economic recovery andgrowth

the inappropriate use o judicial review as a campaign tactic;

and the use o the delays and costs associated with judicial review

to hinder actions the executive wishes to take.

Te last two points reflect what the government views as theinappropriate use o judicial review.

Te urther reorm consultation paper proposes reorms in sixareas:

planning challenges

the question o standing, ie who is entitled to apply orjudicial review

how the courts deal with minor procedural deects, andwhether this can be improved

the use o judicial review to resolve disputes relating to the

public sector equality duty

whether the current arrangements or costs provide theright financial incentives, including legal aid

the scope or making greater use o leaprogging orders,so that appropriate cases can move quickly to the SupremeCourt.24

23 Paragraph 7

24 Paragraph 19


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o the extent that such reorms address efficiency concernsalone (as understood with the caveats above), they have nowider constitutional significance. For example, the Governmentproposes to address the impact o judicial review on economicrecovery and growth by, in the planning context, streamlin[ing]the existing judicial and administrative processes to increase thespeed with which statutory challenges and judicial reviews areheard.25 Tis undertaking is, in principle, consistent with the

unction o judicial review as a constitutional oundation stone.It is in everyones interests or judicial review to be streamlinedand efficient, so long as its undamental constitutional role ismaintained.26 Tere may, o course, be different perceptions asto how efficiency may best be promoted and also views about therisks o prioritising efficiency over justice. Tese are legitimateconcerns or the consultation process on the proposed reormsthat has now concluded.

However, the governments proposals which go beyond efficiency notably those proposals in relation to standing, financialincentives and procedural deects are o a qualitatively differentnature and may have significant constitutional implications.

Standing

A key proposal in the consultation is to change the standingrule which determines whether a particular claimant may bringa judicial review claim or not. Parliament has simply stated thata claimant must have sufficient interest in the matter to which

25 Further reorm consultation paper, paragraph 36

26 Note the review outlined above established by the Bingham Centre or the Rule

o Law to consider and report on possible ways o improving judicial reviewprocedures in the Administrative Court, to save and protect public unds, in amanner consistent with the rule o law.


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the application relates in order to bring a claim.27Te courtshave interpreted this requirement broadly. Tey take accounto a whole range o actors in determining whether a claimantsinterest is sufficient to justiy allowing the claim.28In the vastmajority o claims, the claimant has a clear private interest inthe subject o the challenge and it will be sel-evident that theclaimant has standing in such a case. But where a claim is broughton the basis o the public interest rather than an individual

interest, standing will need to be considered. Te merits o theclaim ofen have a substantial impact on the courts decision as towhether the claimant has standing; and the courts also considerthe importance o vindicating the rule o law and ensuring thatunlawul decisions do not go uncorrected.29Te current test maythus be thought to have been developed by the courts expresslyin order that the courts can perorm their unction in protectingthe rule o law. See the ollowing explanation by Lord Reed in theSupreme Court.30It merits quoting, despite its length, because itdemonstrates the nuances o the courts approach:

27 Section 31(3) o the Senior Courts Act 1981 states: No application or judicialreview shall be made unless the leave o the High Court has been obtained inaccordance with rules o court; and the court shall not grant leave to make suchan application unless it considers that the applicant has a sufficient interest in the

matter to which the application relates.28 Auburn et al, op cit, paragraphs 24.1524.30

29 Auburn et al, op cit, paragraph 24.30. See, in relation to the rule o law, R v InlandRevenue Commissioners, ex parte National Federation o Sel-Employed and SmallBusinesses Ltd [1982] AC 617 at 644E per Lord Diplock: It would, in my view, bea grave lacuna in our system o public law i a pressure group, like the ederation,or even a single public-spirited taxpayer, were prevented by outdated technicalrules o locus standi rom bringing the matter to the attention o the court tovindicate the rule o law and get the unlawul conduct stopped.

30 AXA General Insurance Ltd and others v HM Advocate and others [2012] 1 AC868 at paragraphs 169170. Tis is a Scottish case but nevertheless helpullyilluminates an approach to standing based on the rule o law.


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Tere is thus a public interest involved in judicialreview proceedings, whether or not private rights mayalso be affected. A public authority can violate the rule olaw without inringing the rights o any individual: i, orexample, the duty which it ails to perorm is not owed toany specific person, or the powers which it exceeds do nottrespass upon property or other private rights. A rights-based approach to standing is thereore incompatible withthe perormance o the courts unction o preserving therule o law, so ar as that unction requires the court togo beyond the protection o private rights: in particular,so ar as it requires the courts to exercise a supervisoryjurisdiction. Te exercise o that jurisdiction necessarilyrequires a different approach to standing.

For the reasons I have explained, such an approach cannotbe based upon the concept o rights, and must insteadbe based upon the concept o interests. A requirementthat the applicant demonstrate an interest in the matter

complained o will not however operate satisactorilyi it is applied in the same way in all contexts. In somecontexts, it is appropriate to require an applicant orjudicial review to demonstrate that he has a particularinterest in the matter complained o: the type o interestwhich is relevant, and thereore required in order tohave standing, will depend upon the particular context.In other situations, such as where the excess or misuseo power affects the public generally, insistence upon aparticular interest could prevent the matter being broughtbeore the court, and that in turn might disable the courtrom perorming its unction to protect the rule o law. Isay might, because the protection o the rule o law doesnot require that every allegation o unlawul conduct by apublic authority must be examined by a court, any morethan it requires that every allegation o criminal conductmust be prosecuted. Even in a context o that kind, theremust be considerations which lead the court to treat theapplicant as having an interest which is sufficient to justiy


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his bringing the application beore the court. What is tobe regarded as sufficient interest to justiy a particularapplicants bringing a particular application beore thecourt, and thus as conerring standing, depends thereoreupon the context, and in particular upon what will bestserve the purposes o judicial review in that context.

Te government is consulting on a proposal that a judicialreview claim could not be brought unless the claimant has a

direct interest.31 Tis would be constitutionally significantbecause it would in principle allow unlawul executiveaction, which the courts would currently review, to remainunchallenged. Te Public Law Project gives an example o howsuch reorm would make some government action (which thecourts currently consider it appropriate to review despite thelack o an individual claimant with a direct interest) impossibleto challenge:

Tis is because there are times when an individual isnot able to bring a challenge. Tis might be becausean unlawul policy exists, but has not affected anyindividuals yet and so could not be challenged by anindividual claimant or because the people affected byan unlawul policy are unable to bring a challenge.For example, in a judicial review brought by the

immigration detention charity Medical Justice, thecourts decided that the Home Office policy o deportingpeople with less than 72 hours notice, so that they didnot have time to get legal advice, was unlawul becauseit violated the common law right o access to thecourts.32Tis challenge could not have been brought bythe individuals affected by the unlawul policy, becausethey had been deported without sufficient time to get

31 Paragraph 67 onwards

32 R (Medical Justice) v Secretary o State or the Home Department[2011] EWCACiv 1710


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legal advice on the lawulness o their deportation or thelawulness o the policy as a whole. Only an NGO couldchallenge the unlawul policy, and i Medical Justice hadnot brought the challenge, the unlawul policy might stillbe in existence.33

A clear case can be made out that this state o affairs wouldcontravene the rule o law as understood by the judiciary, becauseit would put some unlawul executive action, which the courts

would currently review, beyond the reach o the courts. It maynot be difficult to see how this would threaten the rule o law inthe sense understood by the judiciary, in the light o Lord Reedsstatement above, particularly where he emphasises that:

insistence upon a particular interest could prevent thematter being brought beore the court, and that in turnmight disable the court rom perorming its unction to

protect the rule o law.

Rebalancing financial incentives

Te urther reorm consultation paper proposes that lawyersshould only generally be paid or legal aid work carried out onan application or permission or judicial review i permissionis granted by the court (subject to a discretion to pay in certaincases concluding beore permission). Others will respond tothe merits or otherwise o this specific proposal. However, orpresent purposes, it may be considered important to recognisethe potential or the existing legal aid reorms (which in effectrestrict access to the courts by those who cannot otherwise affordlitigation) taken in combination with the present proposals, toerode the rule o law, as understood potentially both by the

33 Public Law Project, Judicial review: proposals or urther reorm briefing paper,October 2013


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judiciary and under a societal consensus. In early 2013, LordNeuberger, President o the UK Supreme Court, told the BBC:34

My worry is the removal o legal aid or people to getadvice about law and get representation in court willstart to undermine the rule o law because people willeel like the government isnt giving them access to justicein all sorts o cases.

And that will either lead to rustration and lack oconfidence in the system, or it will lead to people takingthe law into their own hands.

Another proposal under the heading o rebalancing financialincentives relates to protective costs orders, which limit the costsexposure o a claimant in a public interest case. Te governmentproposes to stipulate that protective costs orders will not beavailable in any case where there is a private interest, regardlesso whether there is a public interest. PCOs are arguablyconstitutionally significant because they enable issues o publicimportance to be raised which would otherwise be stifled becauseo a claimants lack o means. Tere is a clear case to say that toignore the wider public interest would thereore undermine theconstitutional purpose and effect o PCOs. Furthermore, thisproposal in conjunction with that in relation to standing would

create a Catch-22 situation whereby a claimant would never meetthe tests or both standing and a PCO, because the qualiyingeature or standing (direct interest) would rule out a PCO. Tisposition may be thought to lack internal logic, because PCOs,while available in principle, could never be obtained in practice.35

34 As reported on the BBC news website, Lord Neuberger, UKs most senior judge,voices legal aid ears, 5 March 2013

35 Further reorm consultation paper, paragraph 154 onwards; the Bingham Rule

o Law Centre in its response to the urther reorm consultation paper hasresponded in more detail in relation to the proposals generally on rebalancingfinancial incentives, o which PCOs are one aspect.


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Procedural defects36

Currently, where the deendant argues that a remedy should notbe granted (or a claim should be dismissed) because the outcomewould have been the same even i the unlawul conduct had notoccurred, the deendant must show that the outcome wouldinevitably have been the same. Te government is proposinglowering the threshold to highly likely. Tis proposal may riskinterering with the both the rule o law as understood by thejudiciary, and the separation o powers.

In relation to the rule o law, the relevant concern may be thoughtto be that the proposal inevitably contemplates that some caseso unlawul action where the outcome might have been differentwould not be allowed to proceed. Tat may be thought to createanother category o cases, in addition to the category created bythe standing proposal (o claims where the claimant has no directinterest), where unlawul executive action, even that which mighthave made a difference to the outcome, would be put beyond thereach o the courts.

Further, in relation to the separation o powers, this conceptdictates, in this context, that the courts do not stray into thedecision-making territory which is the remit o the executive.Tat boundary may be threatened by the lowering o the threshold

i it were to require the court to stray rom its proper provinceo reviewing the propriety o the decision making process intothe orbidden territory o evaluating the substantial merits othe decision (Smith v North East Derbyshire Primary Care rust[2006] EWCA Civ 1291, paragraph 10).

36 Further reorm consultation paper, paragraph 91 onwards


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International human rights obligations and the EU

Te governments urther reorm consultation paper may bethought to lack clarity in relation to its impact on the courtsobligations under the Human Rights Act 1998 and the EuropeanCommunities Act 1972. Te consultation paper states thatprimary legislation [is] not susceptible to judicial review.37Tis is correct outside the impact o those two statutes. But theEuropean Communities Act obliges domestic courts to disapplyprimary legislation which is inconsistent with EU law;38and theHuman Rights Act gives the High Court (and other courts):

Te duty to interpret primary legislation in a way which iscompatible with rights under the European Convention onHuman Rights, so ar as it is possible to do so; and39

Te power to declare that a provision o primary legislationis incompatible with a Convention right.40

Te consultation paper notes that the requirements o EU law asreflected in the Aarhus Convention would mean that cases whichraised environmental issues could not be subject to the proposedrestrictions on, or example, standing or protective costs.41However, it does not appear to make any other exceptions, orEU law more generally or Convention rights.

37 Paragraph 2138 See or example R v Secretary o State or ransport, ex parte Factortame [1990]

2 AC 85 and R v Secretary o State or Employment, ex parte Equal OpportunitiesCommission [1995] 1 AC 1.

39 Section 3(1). Per Lord Nicholls in Re S (Minors) (Care Order: Implementation oCare Plan) [2002] 2 AC 291: Tis is a powerul tool whose use is obligatory. Is itnot an optional canon o construction. Nor is its use dependent on the existenceo ambiguity. Further, the section applies retrospectively. So ar as it is possible todo so, primary legislation must be read and given effect to in a way which iscompatible with Convention rights. Tis is orthright, uncompromising language.

40 Section 4(2)

41 Paragraphs 81 and 156


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I the government does intend to make an exception or caseswhich may require the disapplication o, or a declaration oincompatibility in relation to, primary legislation then there is nopotential urther erosion o the rule o law under this heading.However, i it does not, then this position may be thought to beinconsistent with the rule o law as likely to be applied by thejudiciary: in these cases Parliament (unless the two statutes citedabove are amended) has provided the courts with the power or

the duty to disapply, or declare incompatible with the ECHR,primary legislation. Furthermore, creating exceptions may createanomalous situations whereby different restrictions may beimposed on judicial review depending on whether the claim mayinclude matters o EU or Convention law or not and the natureo such claim. Such different treatment may be thought to needjustification.

Approach to the governments specific proposals

Te intention o this paper is not to examine in detail the overallmerits o the governments specific proposals. Te examples givenabove are intended to demonstrate the potential constitutionalimpact o some o the reorms which seek to go beyond efficiency.

Further sections o this paper will take the governments proposal

in relation to standing as an example o a measure which thegovernment may seek to take orward, which on one clear analysis,is contrary to the rule o law as it may be understood by thejudiciary. Te analysis in those urther sections could by parityo reasoning also apply mutatis mutandis to other exampleso measures arguably threatening the rule o law which thegovernment may seek to take orward.


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Further analysis

A question arises whether the government understands the ruleo law to mean the same as that understood by the judiciary.Te answer is not clear. Te government makes two statementswhich may be thought to support a core understanding othe rule o law as it applies to judicial review, which is in linewith the core judicial understanding and societal consensuspostulated above, suggesting that it supports a thick ratherthan thin version o the rule o law in this context. Tosestatements are:

that judicial review is a largely judge-developed procedureand can be characterised as the rule o law in action42and

that the government wants to ensure that judicial review isreadily available where it is necessary in the interests o justicein holding the executive to account, but that it cannot be usedsimply to campaign against, rustrate or delay decisions.43

However, it is difficult to assess whether the government agreeswith judicial dicta that a wide notion o standing may benecessary in order to uphold the rule o law. Te governmentsproposals may be said, as outlined above, to be contrary tothis understanding o the rule o law, but there are perhapstwo alternative interpretations o the position: first, that thegovernment does disagree with the judiciary; or second that thegovernment may not disagree but has not ully considered theimplications or the rule o law o its proposal.

As outlined above, judicial review is intrinsically related tothe balance o power between the component parts o theconstitution. Te governments proposal may be seen as seeking

42 Paragraph 21

43 Paragraph 8


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in substance to produce a constitutional change in two respects:

First, in its nature: it would be the first occasion on whichthe executive has sought to place restrictions on the judicialreview process as a whole with the intended result opreventing court challenges to potentially unlawul executiveaction. Tis proposal may thus be seen as having crossed aline which paves the way or urther restrictions.

Secondly, in its effect: barring the courts review o anunlawul decision on grounds o standing which do not allowconsideration o the merits may be thought to significantlyalter the balance o power between the executive on the onehand, and the judiciary (who act to protect both the interestso individuals and the general public interest in preventingabuse o power) on the other.

A possibility that the real desire o the executive is to strengthenits power as against the judiciary may be thought to be supportedby what many will see as rhetoric accompanying the governmentsproposals. Tis includes:

In the first consultation paper, the scarcely concealedimpatience o the executive with what it implicitly perceivesto be an unnecessary constraint on its powers: this enabledRichard Gordon QC to predict (it may be thought, accurately)

that the ostensibly anodyne first wave o reorms, ocusingon procedure and administration were paving the way or amore substantial attack on judicial review.44

Chris Graylings article in the Daily Mail (September 2013),Te judicial review system is not a promotional tool orcountless Lef-wing campaigners, which many will interpretas politically toned, timed to coincide with the launch o the

44 Gordon, op cit


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urther consultation. In this article he may be thought tohave suggested (i not made a virtue o the act) that he doesnot have an open mind in advance o the consultation:

In proposing these changes, I will no doubt be accusedo killing justice and destroying Magna CartaBut inproposing these changes, I know we will be doing theright thing or Britain.

Features o the urther reorm consultation paper, includingthe suggestion that Parliament and the elected Governmentare best placed to determine what is in the public interest.45Tis may be viewed as an attempt to side-step the point(which it acknowledges46but does not address, in relation toits proposal) that judicial claims brought by NGOs etc (thevery groups which it seeks to restrict) are moresuccessulthan those brought by other claimants.

It may be suggested on the governments behal that thegovernment is not trying to shif the balance o power; rather,that it is trying to pull the balance back to its rightul place.Indeed, this is what the government in effect claims.

However, a problem may be perceived with this analysis. Tegovernment says that the wide approach to standing has tipped

the balance too ar, allowing judicial review to be used to seekpublicity or otherwise to hinder the process o proper decision-making.47Notably, the government does not say that the courtshave been allowing unmeritorious claims to succeed (includingthose brought by public interest groups). In judicial review,a claim does not necessarily need a particular interest to be

45 Paragraph 80

46 Paragraph 78

47 Paragraph 79


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meritorious, as Lord Reed explains in the quotation above. Sowhat is the governments criticism?

Te government says that its criticism is o the inappropriateuse o judicial review in various respects simply to generatepublicity or campaign; delay the implementation o decisions;or rustrate or discourage legitimate executive action. But it maybe thought that i a claim is meritorious (which may be thoughtto mean or present purposes that the claim reveals a real caseo unlawul executive action) and the claimant has sufficientinterest to bring the claim (as determined on current principlesby the courts in order to uphold the rule o law) then even thegovernments own expressed view may on one reading supportsuch a claim proceeding, despite publicity or delay etc. Tegovernments own view may be thought to support this becausethe government has said that it wants to ensure that judicial

review is readily available where it is necessary in the interestso justice and holding the executive to account: this may bethought to be exactly the assessment which the courts have madein applying a relatively wide test or sufficient interest.

For this reason, it may be thought that the governmentssuggestion to limit standing is not easily explained by its stateddesire to ensure that unmeritorious claims are not brought

simply or inappropriate purposes such as publicity. I this werethe case it would perhaps target unmeritorious claims. Instead, ithas targeted a category o claims which have proved to be moremeritorious than others but may be thought politically irksome.

Summary

Te courts have developed a liberal test for standing so that a

judicial review claim may proceed depending on a number offactors, even if the claimant has no direct interest. A rationale


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is that insistence upon a particular interest could prevent thematter being brought before the court, and that in turn mightdisable the court from performing its function to protect therule of law. Te government proposes to rule out claims unlessthe claimant has a direct interest. A clear case may be made outthat this proposal would contravene the rule of law, because itwould put some unlawful executive action, which the courtswould currently review in the name of the rule of law, beyond

the reach of the courts. Te governments proposal may be seenas seeking in substance to enact a constitutional change. For thepurpose of further analysis, this paper will take the proposalto restrict standing as an example of a measure which thegovernment may seek to advance, which on one clear analysis,is contrary to the rule of law as understood by the judiciary inthis context.


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Could Parliament legislate contrary tothe rule of law?

I a relevant proposal amending the standing rule were to beimplemented in secondary legislation, it may itsel be susceptibleto challenge by way o judicial review and vulnerable to quashingby the courts (or example on the ground that the enablinglegislation did not permit secondary legislation which intereredwith the rule o law). In any event, even i secondary legislationwere introduced and not judicially reviewed, there is a case orsaying that it may not have the intended effect in the courts. Given

that the courts current wide test o standing derives rom theirbroad interpretation o sufficient interest in the Senior CourtsAct 1981, section 31(3) (ie primary legislation), there is a caseor saying that i Parliament does not amend this provision, thecourts may proceed, in effect, as they had done beore in relationto standing, on the basis that i Parliament really wished thecourts approach to change it would have amended the primarylegislation.

Te government may choose to introduce any relevant proposalsby way o primary legislation. An example o relevant primarylegislation would be a statute amending the Senior Courts Act1981 to define sufficient interest so as not to include claimantswith no direct interest.

According to the Diceyan exposition o Parliamentary

sovereignty, Parliament can pass whatever legislation it chooses,including legislation contrary to the rule o law. However,


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it seems unlikely that the government would advance a billstating it to be contrary to the rule o law. It thus seems morelikely that the central debate would be whether the proposal inquestion inringes the rule o law or not. Tere may be debatein Parliament about the meaning o the rule o law; whether theproposal in question inringes it; whether Parliament shouldlegislate contrary to the rule o law; and what the implicationsmight be o legislation which may be perceived by members

o the judiciary as interering with the rule o law. Significanthurdles may be placed in the governments way (includingthe analysis o committees such as the Joint Human RightsCommittee and the House o Lords Constitutional Committee;and potential opposition rom the House o Lords itsel i notthe Commons). However, i the government had the supporto the majority o the House o Commons, it could (using theParliament Acts 1911 and 1949 i necessary to overcome Houseo Lords opposition) bring into orce legislation which is widelybelieved to contravene the rule o law. Tere is, or example, noprovision or constitutional statutes (which might be definedas statutes which enjoy a distinctive constitutional status withinthe United Kingdom because o their special subject matter) tobe given special protection, such as being exempted rom theParliament Acts so that agreement o the House o Lords would

be required to amendment or appeal; or permitting substantialamendment or repeal only by absolute or special majority in theHouse o Commons, or by reerendum.

Lord Bingham noted that respected and authoritative voicesnow question whether parliamentary sovereignty can coexistwith the rule o law.48 So an answer to the question whetherParliament could legislate contrary to the rule o law may be

in substance incomplete without addressing the question o48 Bingham, op cit, p161


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how the judiciary might respond to such legislation. Tat is thequestion which this paper will address next.

Summary

Tere may be a case for the government to use primary ratherthan secondary legislation to implement proposals whichmay be thought by the judiciary to threaten the rule of law.Even if Parliament sought to pass primary legislation which iswidely thought to be contrary to the rule of law, there are noconstitutional requirements for such legislation to be treateddifferently from other legislation, during its passage. Undera traditional understanding of Parliamentary sovereignty,Parliament may pass whatever laws it likes. However, an answerto the question whether Parliament could legislate contraryto the rule of law may in substance be incomplete without

addressing the question of how the judiciary might respond tosuch legislation.


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How might the judiciary respond tolegislation contrary to the rule of law?

For the purpose o considering this question, this paper willassume hypothetically that Parliament were to pass primarylegislation requiring that a judicial review claimant must have adirect interest. As outlined above, this is used as an example onlyo potential legislative action in relation to judicial review whichmay be thought to be inconsistent with the rule o law.

Tis paper will also hypothetically assume:

that ollowing the coming into orce o such legislation, aclaimant (such as an NGO or other public interest group)with no direct interest seeks to bring a judicial review claimwith a clear prima acie argument that an executive decisionis unlawul;

that this claimant would have been considered to havestanding under the current test; and

that this claimant argues in its application or permission orjudicial review that the new amendment does not compelthe court to reuse permission.

It is conceivable that a claimant would argue that the amendmentshould not be applied by the judiciary at all because it inringesthe rule o law. A traditional understanding o Parliamentarysovereignty (that Parliament can legislate or what it likes and

the courts will apply its will) would put paid to this argument.However, there are judicial dicta which suggest it may be unwise


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to assume that the courts would necessarily apply a traditionalunderstanding o Parliamentary sovereignty in extremecircumstances where they considered Parliament to be erodingthe rule o law. Tere is some judicial support or the propositionthat while the supremacy or sovereignty o Parliament is still thegeneral principle o our constitution, the principle is not absoluteand, because the principle was created by judges, judges coulddecide not to ollow it in certain circumstances (R (Jackson) v

Attorney General [2006] 1 AC 262). Lord Steyn said (paragraph102):

In exceptional circumstances involving an attempt toabolish judicial review or the ordinary role o the courts,theSupreme Court may have to consider whether thisis a constitutional undamental which even a sovereignParliament acting at the behest o a complaisant House oCommons cannot abolish.

Lord Hope said (paragraph 104):

My Lords, I start where my learned riend, LordSteyn, has just ended. Our constitution is dominatedby the sovereignty o Parliament. But parliamentarysovereignty is no longer, i it ever was, absolute. It is notuncontrolled in the sense reerred to by Lord Birkenhead

LC in McCawley v Te King [1920] AC 691, 720. It isno longer right to say that its reedom to legislate admitso no qualification whatever. Step by step, gradually butsurely, the English principle o the absolute legislativesovereignty o Parliament which Dicey derived rom Cokeand Blackstone is being qualified.

It is important to emphasise that the dicta o Lord Steyn assupported by Lord Hope do not amount to a consensus. Far romit whether there are constitutional undamentals which qualiy


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the sovereignty o Parliament is highly controversial and thesubject o considerable debate. But i any Parliamentary action islikely to prompt this response, an intererence with judicial reviewmay be thought to be a key candidate. While the government isnot currently proposing to abolish judicial review altogether, thesame principles may be invoked even in relation to lesser inroads.

Considerations as to whether the judiciary might in extremecircumstances disobey Parliament are not new. See or exampleClare Dyers profile o Lord Wool in the Guardian nearly a decadeago,49 headed Te lord chie justice has used all his skill andpragmatism trying to persuade the government not to take asylumand immigration issues out o the courts. Now his ellow law lordsare threatening the nuclear option: a blank reusal to obey. It includes:

Te Home Office is talking tough, but in the departmento constitutional affairs the realisation is dawning that thejudges have a potential weapon o mass destruction. Teear is that they could invoke what the Liberal Democratpeer and QC Lord Goodhart called the nuclear option reusing to enorce the clause and allowing cases to go thehigh court nevertheless. Some judges have been talkingabout it, he told BBC Radio 4s World at One yesterday.

Lord Falconer looked disconcerted when I mentionedthat a leading judicial review expert had produced a

legal opinion to that effect. Some public law specialists,including those who ofen appear on the governmentside in court, are speculating that the time may havecome when the courts can simply reuse to enorce sucha ban as an affront to the rule o law and a breach o ourunwritten constitution50

49 5 March 2004

50 See the account o the debate over the Asylum and Immigration (reatment oClaimants, etc) Bill 2004 in Wade, op cit,p617, n 279


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Our constitutional arrangements have not aced an ultimate testo this type. Te United States constitution is known or the abilityo judges to strike down primary legislation. However, what is lesswell appreciated is that this power does not stem rom any expressprovision in the US constitution but was created by the judiciary(albeit in the context o that constitution), the Supreme Courthaving laid the oundations in the case o Marbury v Madison(1803).51Tere is speculation about whether the UK, especially

now it has a Supreme Court, might have its own Marbury52(inother words, whether the judiciary here might increasingly laythe oundations or the courts, in an extreme case, expresslynot applying a statute because o its lack o compliance withundamental constitutional principles).

It may be unwise or the government and Parliament to assume,simply because the judiciary in this country have so ar not purported

to review primary legislation or its compliance with constitutionalprinciples, that this is a fixed constitutional arrangement. On oneview, it is not and will merely endure or so long as the judiciaryrestrain rom doing so. Further, as Proessor Paul Craig has stated:

It shouldbe recognised that the case law authority or thetraditional proposition that courts will not invalidate orreuse to apply statute is actually rather thin. Tere are to

be sure many judicial statements extolling the sovereigntyo Parliament, but they are principally just that, judicialstatements rather than ormal decisions. Insoar as thereare ormal decisions that could be said to be based onthe traditional proposition, the acts o such cases weregenerally relatively innocuous. Tey were a very long wayrom the types o case where courts might consider it tobe justified to reuse to apply a statute, which also means

51 5 U.S. 137

52 Eg Edlin, Douglas, Will Britain Have a Marbury? UK Const. L. Blog (7th June2013) (available at http://ukconstitutionallaw.org)


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that such cases could be readily distinguished should acourt eel minded to do so.53

I the government and Parliament were themselves to rerainrom advancing and passing legislation which may be said tocontravene the rule o law (or other undamental constitutionalprinciples) as understood by the judiciary, then the judiciarywould not be put to the test in this respect. Conversely, i the

government and Parliament were to advance and pass legislationwhich may be thought to contravene a concept which memberso the judiciary recognise as a constitutional principle, suchas the rule o law (as interpreted by the judiciary), this shouldbe done with an appreciation o the risk that it may promptthe judiciary to take on a more active constitutional role andexpressly reuse to apply a statutory provision.

I the judiciary were to act in this way on one occasion in responseto exceptional and extreme circumstances, its collective inhibitionsmay be reduced, with the effect that it may be thought more readythan it had previously been, to strike down primary legislation.Any such action by the courts may, at least i not accepted bythe government and Parliament, create a serious constitutionalmoment with the potential to destabilise existing constitutionalarrangements which are currently taken or granted.

Te prospect o the courts purporting to strike down primarylegislation is speculative; and they are likely to contemplate suchaction i at all only in the most extreme o circumstances.However, there is other action which the courts might be morewilling to contemplate which could achieve a not dissimilareffect in substance. Such action would be superficially lesscontroversial, but perhaps equally significant in terms o whether

Parliaments will is enorced or not.53 Craig, op cit


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Te courts have a long-established history o reusing to enorce eventhe clear intention o Parliament where to do so would erode the ruleo law in the sense that some instances o unlawul administrativeaction, which it is necessary to review in order to uphold the ruleo law, would be put beyond the reach o the courts. However, whatdifferentiates this type o court action rom that considered above isthat here, the courts pay what may be thought o as lip service to thenotion that they are enorcing the will o Parliament. Well-known

canons o statutory interpretation dictate that on occasions, thecourts will interpret a statute contrary to its natural wording whilemaintaining that they are applying Parliaments intention.

Te courts have quashed decisions made under statutes despitethose statutes containing no certiorari clauses, which providedessentially that decisions made under the relevant statute shouldnot be quashed.54Ouster clauses, stating that a particular decision

shall not be called in question in any court o law (or equivalentwording), have not prevented the courts rom intervening inthe case o unlawulness (see notably Anisminic Ltd v ForeignCompensation Commission).55

In the present context, there is thereore a clear risk that the courtsmay, through powerul principles o statutory interpretation, ineffect not apply any purported restriction to the standing test

(ie that the courts would disobey Parliament, while claimingto obey) in circumstances where the courts would previouslyhave permitted a claim to proceed, i the courts considered thisnecessary in order to uphold the rule o law.

Te courts are likely to take some support or their approach romParliaments recognition o the rule o law in the ConstitutionalReorm Act. As Lord Bingham has said:

54 Wade, op cit, p612

55 [1969] 2 AC 147


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[]he statutory affirmation o the rule o law as anexisting constitutional principle and o the LordChancellors existing role in relation to it does have animportant consequence: that the judges, in their roleas journeymen and judgment-makers, are not reeto dismiss the rule o law as meaningless verbiage, thejurisprudential equivalent o motherhood and apple pie,even i they were inclined to do so. Tey would be boundto construe a statute so that it did not inringe an existingconstitutional principle, i it were reasonably possible todo so.56

Te government may argue that the principle o legality merelyrequires that i it chooses to legislate contrary to a constitutionalprinciple, it may do so, as long as it makes this clear.57However,in the case oAnisminiccited above, the court in effect rewrotethe relevant statute to say that only a lawul decision could not

be called into question. Tis was clearly contrary to Parliamentsintention. It is thereore at least possible that the courts mayconsider deploying equally inventive legal techniques in relationto legislation purporting to restrict aspects o judicial reviewmore generally.

Te risk o judicial interpretation contrary to Parliaments clearintention may be all the more conceivable i the government

maintains that it is acting in accordance with the rule o law (as itmay be politically required, in practice, to do). I the governmenthas stated essentially that it does not intend to undermine therule o law (particularly in material which would be admissible

56 Bingham, om, Te Rule o Law, lecture at University o Cambridge, Centre orPublic Law, 16 November 2006

57 Tis would draw on the principle o legality, which states that Parliament willbe presumed to legislate in accordance with undamental rights unless it makes

expressly clear its intention to the contrary. See or example per Lord Hoffmannin R v Secretary o State or the Home Department, ex parte Simms[2000] 2 AC115 at 131E-G and Lord Steyn in Pierson, cited above.


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in court proceedings in order to help interpret an ambiguouslegislative provision58), but a judge considers that the proposalsdo undermine the rule o law, this could increase the ease withwhich a judge may justiy interpreting the proposals so as notto give effect to the governments proposal. Te justificationmay be that Parliament did not intend to contravene the ruleo law; thereore the provision must be interpreted so as not tocontravene the rule o law, even i such interpretation is contrary

to the natural meaning o the words in the provision.

However, there is good reason or the judiciary to act with extremecaution in deciding whether to take any step which it perceivesto be contrary to the will o Parliament. wo actors requiringcaution have already been touched upon in this section, namelywhether such step would usurp the courts proper constitutionalunction (which itsel requires consideration o what their

proper constitutional unction is), and what the constitutionalconsequences may be. Another actor closely related to the first(or perhaps part o it) is whether judges could, as unelectedofficials, legitimately claim to represent the public interest ina direct conflict with Parliament, when the government andParliament perhaps more substantially claim to do thatthrough representative democracy. Tat tension is central to theissues in this paper and will be returned to in the conclusion.

Summary

Under a traditional understanding of Parliamentary sovereignty,legislation will be applied by the courts and there is no reasonto question this most of the time. However, there is somejudicial support for the proposition that while the supremacyor sovereignty of Parliament is still the general principle of our

58 Under the rule in Pepper v Hart[1993] AC 593.


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constitution, the principle is not absolute and, because theprinciple was created by judges, judges could decide not tofollow it in certain circumstances, such as an attempt to abolishjudicial review. Tis proposition is controversial and there is noconsensus about it. However, it may be unwise for the governmentand Parliament to assume, simply because the judiciary in thiscountry have so far not purported to review primary legislationfor its compliance with constitutional principles, that this is a

fixed constitutional arrangement. Furthermore, the judiciaryhave considerable powers of statutory interpretation which theyhave used in the past to disobey Parliaments intention, whilemaintaining that they are upholding it. Te judiciary might findit easier to use such powers if Parliament were to maintain thatit is acting in accordance with the rule of law, because this mayjustify the judiciary in interpreting legislation not in accordancewith its wording, but in accordance with judicial interpretationof what the rule of law entails.


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What are the potential widerconstitutional consequences?

Discussions about the rule of law

As outlined above, the passage o any new legislation restrictingjudicial review is likely to prompt debate about the rule o law.Such debate may be prone to raise urther questions about thegovernments relationship with the rule o law. Such questionsmay go beyond judicial review. A prime example would bewhether a state such as the UK breaches the rule o law by not

complying with international law obligations (or example inrelation to prisoner voting). Tere is a view59that the rule o lawrequires a state to respect international obligations.

Tere is a risk that such discussions may paint a general picture othe government as having an intention in effect to erode the ruleo law because it wishes to increase its power, whether as againstanother branch o state (the judiciary) or an international orce

such as the European Court o Human Rights. Such a picturemay detract attention rom consideration o other, potentiallyless controversial, proposals or the increased efficiency o thejudicial review procedure which are consistent with the rule olaw.60

59 For example, this was Lord Binghams eighth sub-rule in his analysis o the rule olaw: Bingham, op cit, p110

60 O a kind which may, or example, be introduced ollowing a careul review asoutlined above.


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Parliamentary sovereignty

Te analysis in the previous section demonstrates that it maynot be anciul to suggest that legislation restricting judicialreview could be the trigger or cases which might make theconstitutional position in relation to the continuing significanceo Parliamentary sovereignty less certain. Such cases couldpotentially involve:

Te courts powerul methods o statutory interpretationwhich they have previously used so as not to enorce theclear will o Parliament, in order to uphold the rule o law.

An express ruling that they will not apply a particularstatutory provision.

I the courts are given cause, in effect not to apply legislationby either o the above means, they may be more prepared to doso in other cases outside the field o proposed restrictions tojudicial review.

Codified constitution

Tere are several reasons why the purported implementation oa measure in primary legislation widely thought to be contraryto the rule o law may tend to trigger urther consideration o theprospect o a codified constitution.

Te notion that primary legislation cannot, according to atraditional model o Parliamentary sovereignty, be judged againstundamental constitutional principles including human rights,may be seen to become increasingly unattractive i Parliamenthas shown its willingness to legislate contrary to such principles.

I the judiciary shows itsel to be willing to disobey Parliamentin order to uphold the constitutional principle o the rule o law,


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there may be a powerul case or saying that this power o thejudiciary should be regulated, rather than lef to develop ad hoc.Tat could be a case which a government and Parliament mayavour because it may be politically and constitutionally moreacceptable to be constrained by a judiciary that is acting on thebasis o codified constitutional principles, than to be constrainedby a judiciary exercising apparently ree power.

Lord Chancellors oath and duties

I restrictions on judicial review were to be perceived as extreme,opponents o such restrictions may take extreme measures in orderto challenge them. Some extreme opponents might take the view thatthe Lord Chancellor, in presenting the urther reorm proposals toParliament, had acted contrary to his oath. Te courts might even beasked to rule upon the Lord Chancellors adherence to his oath and

even whether he should remain in office. Whether any legal basis oradjudication o the latter type exists is unclear and beyond the scopeo this paper, and it seems reasonable to predict that any such claimwould be ar rom straightorward and perhaps non-justiciable.However, any litigation o this type (even i ultimately unsuccessul)would have the potential to bring to the ore what may be thought oas anomalies in the Lord Chancellors role which are highlighted byproposals such as those currently advanced.

Summary

Legislation restricting judicial review which is thought by thejudiciary to be contrary to the rule of law has potentially widefurther constitutional consequences including:

Detracting attention from any less controversial proposalswhich may be suggested to make the judicial review processmore efficient.


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Potentially triggering action by the courts which might makethe constitutional position in relation to the continuingsignificance of Parliamentary sovereignty less certain.

Making the case for a codified constitution against whichprimary legislation could be reviewed seem more attractive,if the potential alternative may be unregulated disobedienceby the courts of Parliaments will.

Potential challenges to and questions about the role ofthe Lord Chancellor.


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Conclusion

Proposals to restrict judicial review have the potential tosignificantly alter the constitutional balance o power. It is

possible that this may be what the government wants to do, inthe sense o increasing its power over the judiciary.

However, such reorm proposals have the potential to alter theconstitutional balance in ways in which the government andParliament may not have anticipated. For example, i the judiciarywere to eel compelled in extreme circumstances to resiststatutory measures which it thought prejudiced the courts ability

to protect the rule o law, judges may in practice not implementsuch measures. Tis could arguably have the opposite effect tothat which the government may intend, namely increasing theeffective power o the judiciary in the constitutional balance. Tegovernment and Parliament may then need to escalate the powerrequired in response in order to right the balance. Te result couldbe a constitutional crisis o uncertain effect and proportions.

Such a scenario is speculative and extreme. But judicial reviewis at the heart o our constitutional balance and the courts arelikely to take any threat to their ability to maintain the rule o lawseriously. It may thereore be considered entirely appropriate toimagine what might happen in extreme situations and exercisecaution when considering reorm. Te President o the SupremeCourt, Lord Neuberger, has also advised caution to thoseconsidering reorm o judicial review:61

61 Justice in an Age o Austerity, JUSICE om Sargant memorial annual lecture2013 given by Lord Neuberger o Abbotsbury, President o the Supreme Court, on15 October 2013, paragraphs 3738


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I should mention the Governments recent paper onjudicial review in this context. It contains proposalsintended to cut down the cost and delay involved in JRapplications. Te desire to discourage weak applicationsis understandable, even, laudable, and the desire toreduce delay and expense is plainly right, at least inprinciple. However, one must be very careul about anyproposals whose aim is to cut down the right to JR. Tecourts have no more important unction than that oprotecting citizens rom the abuses and excesses o theexecutive central government, local government, orother public bodies. With the ever-increasing power oGovernment, which now commands almost hal thecountrys GDP, this unction o calling the executive toaccount could not more important. I am not suggestingthat we have a dysunctional or ill-intentioned executive,but the more power that a government has, the morelikely it is that there will be abuses and excesses which

result in injustice to citizens, and the more important itis or the rule o law that such abuses and excesses can bebrought beore an impartial and experienced judge whocan deal with them openly, dispassionately and airly.

While the Government is entitled to look at the waythat JR is operating and to propose improvements, wemust look at any proposed changes with particular care,because o the importance o maintaining JR, and alsobearing in mind that the proposed changes come romthe very body which is at the receiving end o JR.

Tis report does not purport to provide an exhaustive analysis othe potential constitutional implications o the proposed reorms.Rather, it has intended to highlight the existence in principle andbroad nature o such implications. Tis topic could properly ormthe terms o reerence or an independent inquiry which could

ully inorm the government and Parliament about the possibleand likely constitutional effects o reorms to judicial review.


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Te ollowing table sets out possible courses o action or thegovernment and Parliament, along with potential constitutionalimplications.

OPIONS POENIAL IMPLICAIONS

1. Do nothing nochange to judicialreview

System remains as it is. Assessment o merits o this option will depend

on detailed consideration o any deficiencies in thecurrent system.

2. ake orwardefficiency-basedreorm o judicialreview

Potential improvement to efficiency o judicialreview system.

Unoreseen constitutional consequences may ariseunless such reorm is taken orward with the benefito a very careul review o the potential implications.Such review could include consideration o whatmeaning o the rule o law should be adopted or thepurpose o judging judicial review reorm proposalsagainst it. It may be thought the review should

consider how reorms can best be made consistentwith that principle.

3. ake orwardreorm o judicialreview which mayinclude, but goesbeyond, efficiencyreorms (to include,or example,

proposed reorms onstanding, protectivecosts orders andprocedural deects)

As 2, plus: Potential to improve judicial review in the

governments opinion. Anticipated potential to worsen j

Documents

J1446 Constitution Society Judicial Review WEB-22