This week’s Judicial Review and Courts Bill proposes two constitutional reforms. Anthony Speaight QC considers the Bill and the questions at its heart, including the notion of a ‘seamless garb of judicial supervision’. Noting the Bill leaves other difficult matters for the future, he suggests their solution may depend on judicial restraint and the emergence of a changed legal orthodoxy.
On 20th July 2021 the Government published a Bill which represents its first legislative step towards implementing the constitutional law prospectus in the 2019 manifesto. On the surface it looks a modest step. But it may in time come to be seen as less modest than it appears.
Rather than follow the manifesto plan of a Commission to review every aspect of the constitution and rights – an unmanageably wide terrain – the Lord Chancellor has wisely chosen to approach the subject area in bite-size chunks. This began with a review of certain specific aspects of judicial review by a group chaired by Lord Faulks QC, which reported in March. The second step was the establishment of a similar review of certain aspects of the Human Rights Act, which is currently at work. The legislation just introduced essentially implements the recommendations of Lord Faulks’ review.
The membership of Lord Faulks’ review was far from a partisan caucus. Its members were all distinguished public lawyers. None apart from Lord Faulks himself had a known connection with the Conservative Party. Despite this politically broadly-based composition, its recommendations were unanimous. When the Government’s initial response suggested that it was interested in going further, Lord Faulks made it clear to a select committee that he personally was at one with his Review colleagues in having no appetite for doing so.
The Bill makes just two reforms. One is procedural. The High Court is to be given power, if and when making a quashing order in a judicial review case, to suspend its effect until a future date. An example of the potential use of this power would have been in a case which found regulations made after the Grenfell tragedy to ban combustible substances to have been the subject of insufficient consultation. The result was that the Regulations were quashed as invalid and the Government had to start the procedure all over again: a suspended order would have allowed the Government simply to complete a consultative process before they came into effect. This is a useful reform, but hardly an earth-shattering one.
The other reform is more interesting, albeit on the surface even more limited. It purports to reverse the outcome of a case which few people outside the realm of public law specialists have even heard of – Cart. The case concerned appeals in such fields as immigration and social security, which are heard by tribunals. Statute offers a route of further appeal to a body called the Upper Tribunal, where High Court judges sit, although this requires permission to appeal from either the first-instance tribunal or the Upper Tribunal. The legislation establishing the Upper Tribunal enacted that it was a “superior court of record”. In 2012 the Supreme Court held that, despite that status, the Upper Tribunal is susceptible to judicial review. The consequence has been a flood of immigration judicial review cases: in the years 2015-2019 there were more judicial review cases in the category of the “Cart immigration” than any other category. Most such cases were unmeritorious: in only 3% of such cases did the High Court discern any error of law by the lower tribunal which the Upper Tribunal had not corrected. As a general approach, there is usually seen to be a value in limiting the number of tiers of appeal: there are many uncontroversial examples of decisions by judicial bodies where the appeal is possible only with the permission of such a body, and several uncontroversial examples of decisions which are wholly unappealable. In the light of all these considerations the Faulks Review recommended that Cart be reversed.
Ending an additional route of appeal by legislation does not sound a difficult task for a parliamentary draftsman; but, in fact, working out how to implement the apparently simple policy of ending Cart applications takes one into a maze of fundamental principles leading to the very heart of the common law of judicial review. That is because, short of enacting that the Upper Tribunal is actually part of the High Court – which on policy grounds relating to its nature nobody much wants to do – one can achieve the desired end result only by a provision enacting that in this situation judicial review shall not lie. In other words, Parliament will have to enact an ouster of judicial review.
But in a series of decisions our most senior courts have come close to holding that it is impossible for Parliament to find words which have the effect of ousting the scope of the courts to hold administrative action unlawful. The courts’ argument typically goes like this: if a statute establishes a public authority with a stated field of jurisdiction and at the same time enacts that its decisions are not to be challenged in any court, that latter provision must surely be read subject to the former provision limiting its jurisdiction to the stated fields. Otherwise a public body established with, say, jurisdiction to issue parking permits could not be challenged if it purported to issue permits to build wind farms. Put like that, few of us would disagree: in other words, we would be inclined to agree that challenge must always lie if a public body acts outside its jurisdiction. Otherwise we would face the nightmare of an uncontrolled administrative leviathan. That is, in simple terms, where some of us understood the common law reached in the famous case of Anisminic in 1969.
The next stage in the development of administrative law also at first hearing sounded attractive, deceptively so. Parliament cannot have intended, it was postulated by judges, to establish a public body with authority to act unlawfully, or to make mistakes of law, or to act irrationally, or unfairly. That also sounds sensible. But wait: the next step in the syllogism led to a conclusion pregnant with problem. If Parliament did not intend the body to make mistakes of law, act irrationally etc, judges concluded, it must follow that the body has no jurisdiction to do so. And hence there is no distinction between a challenge on the ground of acting outside jurisdiction and every other possible public law ground of challenge. That, in simple terms, is where the law had reached in 1983.
So long as this thinking remained in the realm of conceptual theory practical people were not bothered. But what one might call the seamless garb theory of judicial supervision eventually produced the outcome that courts would never accept that a statute which appeared to say that a certain kind of decision is final and unchallengeable could be held to mean what it said. In both Evans, which was the case about the Prince of Wales’ letters, and Privacy International, which was one with security ramifications about the Investigatory Powers Tribunal, the Supreme Court came close to refusing to enforce clear words of a statutory ouster clause. The fact that Parliament’s plain intention was not respected amounted, said the retired Supreme Court judge Lord Brown of Eaton-under-Heywood, to “a tendency towards judicial supremacism”.
The notion of the seamless garb of judicial supervision soon spilled over into the proposition that there was no hard outer boundary to its scope. The House of Lords held in the GCHQ case that prerogative powers were no longer necessarily outside the scope of judicial review. It was this development of the potential justiciability of prerogative powers which ultimately opened the way for the Supreme Court’s decision in Miller 2.
The Faulks Review had recommended that Cart be reversed without any explanation of quite how a statute could be framed to oust judicial review of the Upper Tribunal. Granted the near refusal of the Supreme Court to obey such enactments, that left the Government with some interesting thinking to do – how to draft an enactment to achieve a result judges claim to be intellectually impossible.
The solution with which it has come up is a novel form of ouster clause. Its cl.2 begins by providing that the Upper Tribunal’s decisions are final and not to be questioned in any court, but then cuts out of that generality limited and defined permissible challenges. In this instance the permitted challenges are for bad faith, breach of natural justice, invalidity of an application before it, and not being properly constituted. What matters more than the choice of permitted challenges is the innovation of an ouster clause which divides potential grounds for judicial review into ones which can be made and ones which cannot. In other words, the clause directly attacks the theory that there are no distinctions in the underlying nature of public law challenges.
It now remains to be seen whether, assuming the Bill reaches the statute book in its current drafting, the courts will properly respect and implement cl.2. With Cart challenges being so popular as a last ditch attempt to avoid deportation, it cannot be long before the efficacy of this ouster clause comes before a court. It may, of course, be that the Supreme Court will treat this one in the same way as it treated those in Evans and Privacy International. But that would provoke a real constitutional crisis.
Given the unanimous recommendation of a distinguished, independent review, cl.2 of this Bill has a fair wind behind it. And if, as I expect, the Supreme Court upholds the effectiveness of this clause, then Robert Buckland, that most unassuming of politicians, will have found a way to achieve something rather remarkable. That could be to turn round what had seemed the inexorable growth in the reach of administrative law.
This is not, of course, “job done” on constitutional reform. It is not even “job done” on judicial review. Several major issues remain. One is the creeping suggestion that proportionality, which is a concept of European law, is now also a ground of common law challenge. Another is the prevalence in administrative law cases of politically motivated pressure groups as interested parties. Looming over all is the problem of the Human Rights Act. Some, at least, of these problems are ones which cannot be solved by codification or legislation: they can be resolved only by judicial restraint. That is likely to depend on the emergence of a changed legal orthodoxy – in other words, conservatives winning on the plane of the battle of ideas. Notions of legal orthodoxies emerge from various things: if the Supreme Court judges now respect an ouster clause that would make a valuable contribution.