Introduction

At the December 2019 General Election, the Conservative Party, which went on to win, included in its manifesto the statement that:

• ‘We will update…administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.’ (Conservative Party, 2019: 48).’

In pursuing this objective, the government formed the Independent Review of Administrative Law in July of the following year. Comprising a group of legal experts, it was asked to assess whether courts were maintaining an appropriate balance between the need for government to carry out its functions properly, and the right of members of the public to take legal action to ensure that government remains within the law, known as judicial review. The Review completed its work and reported to the government early in 2021. It had taken evidence submissions from a wide range of sources and carried out its own research.

The Review stressed that were any reforms to be attempted in this area, then they should be approached with caution. Judicial review, it stressed, was vital to the proper functioning of the political system and the upholding of the rule of law, central to which is the principle that the government is subject to the law. The Review was particularly wary of the idea that the government might try to legislate to restrict the powers of the courts without very good reason. Therefore, while it considered a range of options for change, it rejected some of the more radical possibilities. For instance, it specifically opposed the idea of legislation intended to define areas where the courts could not become involved, or only in a limited sense. The Review concluded by discussing the interaction between different parts of the constitution: the courts, Parliament, and the government, and their respective spheres of operation. It suggested a carefully balanced relationship, stressing that:

• ‘Respect should be based on an understanding of institutional competence. Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.’ (Independent Review of Administrative Law, 2021).

The government responded to the Review by attempting to keep options open. Rather than simply accept the findings, it launched a public consultation on possible measures it might take that the Review had not recommended. They included ‘ouster clauses’ – that is legislative means of preventing judicial review of the use of certain powers, making it easier for the government to act. Ouster clauses are controversial because some argue they create the possibility for governments to act in ways that are unfair, irrational, or to do things they do not have proper legal authorisation to do. Supporters of ouster clauses hold that they are necessary to allow the government to act with flexibility in areas of critical importance.

Diving Deeper

Controversy about the role of the judiciary

The Review and the government response to it had a deep political background. Over a number of decades, a strand of opinion – much of it in and around the Conservative Party – has developed that the judiciary has taken on excessive power within the UK constitution. Under the mechanism of judicial review, it is possible for members of the public to challenge the actions of public authorities – including the UK government – on the grounds that they violate legal principles or human rights. Those who are uneasy about this practice hold that it raises democratic problems because it entails unelected judges interfering with politicians who answer to voters for their actions. They hold that judicial review can be abused as means of pursuing political actions by legal means. Such arguments might be seen as having a ‘populist’ flavour to them, in that they pit the people against an out-of-touch elite (see: chapter 1). The counterargument is that it is appropriate for the courts to review the actions of government, since everyone in society must be subject to the law. Without judicial review, it is stressed, government could behave in an arbitrary, oppressive fashion, and would not be subject to proper constraints preventing it from doing so.

Tensions around this issue heightened during the Brexit episode, especially when the government lost two prominent cases – both known as Miller – that were settled in the UK Supreme Court in 2017 and 2019. For some, the court had definitely exceeded its remit and encroached upon political matters in a way it should not have done. Others disagreed. The leading constitutional lawyer, Alison Young, for instance, argued that the conclusion the Supreme Court reached in the second Miller case was successful in striking ‘a delicate balance between law and politics, affirming the Supreme Court’s role as the guardian of the UK’s constitution.’ (Young, 2019)

The agenda of the Conservative government

Against this general background, and influenced in particular by the Miller cases, especially the second case which had occurred during the time in which Boris Johnson was PM, the Conservative Party inserted the pledge quoted above into its manifesto. Conservative ministers appeared to intend to develop a way of passing laws that could decisively limit the courts and prevent them in ruling on the actions of government in ways the UK government did not want them to. Under the principle of parliamentary sovereignty, and in the absence of a ‘written’ or ‘codified’ constitution, it would probably be possible for the UK Parliament to pass one of more Acts that would have this effect (for the constitution, see: chapter 1; for the parliamentary legislative process, see: chapter 4). The government may have hoped that the Review it set up would provide it with some firm proposals to achieve this goal. But the Review did not reach a conclusion that fitted with the outlook of the Conservative government as suggested in its manifesto.

The role of government in setting the policy agnda

The government did not feel as though it could simply act without first appearing to set up a Review into the matter. When it did so, the Review did not necessarily produce the answer that was wanted from it. Yet the Conservative Party had won an election fought on a manifesto including a pledge to change the functioning of judicial review. In this sense, it might be said to have a democratic mandate to bring this outcome about (see: chapter 7). But legislation along these lines might well meet with resistance in Parliament. Particular objections were likely to come from the House of Lords, which takes a special interest in constitutional and legal matters (see: chapter 4). Therefore, the government would prefer to be seen to have some kind of independent backing before proceeding. While government might feel constrained by political circumstances, it does possess some important powers. They include that it can shape the policy agenda, for instance through using its power to hold policy consultations, as it did in response to the Review. If it could gain answers that were in tune with its agenda through this means, it might then be able to use its ability to introduce legislation to Parliament to bring about the changes it sought.

Summary

There was longstanding tension and controversy surrounding a supposed increase in political intervention by the judiciary. Against this background, the Brexit episode saw high profile defeats for the government, heightening tensions over the issue.

The Conservative Party contested and won the 2019 General Election on a manifesto that included pledges to address the balance between the right to challenge government in the courts and the need for government to be able to function effectively.

The UK government set up the Independent Review of Administrative Law to help it fulfil this pledge. The Review, however, did not make major proposals to restrict the powers of the courts. The government opted to keep the matter alive, holding a consultation on possible ways forward.

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