‘Eating the elephant in chunks’: mapping the judicial review bill and other constitutional changes during the Boris Johnson era
As we await the second reading of the Judicial Review and Courts Bill in the House of Commons, Lee Marsons discusses its place among the patchwork of constitutional changes under the current government.
In my April 2021 Legal Action
column on constitutional change during Boris Johnson’s time as prime minister, the key message was that, while there had been considerable examination of individual reforms, there had been insufficient systemic constitutional analysis, making it ‘difficult to get a clear sense of what is happening as a general, interlocking pattern over time’. Since then, this message has become even more critical because we are experiencing ‘the rise of incrementalism’
where ministers are ‘eating the elephant in chunks’.1Public Administration and Constitutional Affairs Committee, Oral evidence: The work of the Cabinet Office, HC 118, 10 December 2020, Q601.
Constitutional change is not occurring in a legislative big bang. There are proposals to test the waters, which may then be pursued, withdrawn depending on the pushback, pursued in a limited form or pursued by non-legislative means. See, for example, the lord chancellor’s recent decision
to rely on judicial restraint to reform the courts’ approach to judicial review.
Therefore, it is important to identify some ongoing patterns. There is an obvious interest in judicial review, principally remedies, grounds, judicial discretion, costs, procedure and ouster clauses. The reform strategy variously involves public rhetoric designed to influence courts, the exercise of existing statutory powers and new legislative proposals. On public rhetoric related to the grounds of review, the lord chancellor recently expressed
his concerns about proportionality, irrationality and the principle of legality, expressing confidence that the courts would take account of his worries.
As for statutory powers, the New plan for immigration
proposes a scheme of fixed recoverable costs for immigration judicial reviews. This means that claimants will not be able to recover their full legal costs from the Home Office, even after winning a properly brought challenge. This will be done by exercising powers under Civil Procedure Act 1997 s3A and Tribunals, Courts and Enforcement Act 2007 Sch 5 para 29.
On legislative proposals, there are many. The Judicial Review and Courts Bill
is a principal focus, of which clauses 1 and 2 are the most relevant. Clause 1(1) creates a rebuttable presumption in favour of a court granting a suspended and prospective-only quashing order, where this ‘offer[s] adequate redress … unless it sees good reason not to do so’. We can look forward to a stream of litigation over the next several years attempting to define ‘adequate redress’ and ‘good reason’, especially when no existing legislative provision uses the phrase ‘adequate redress’. This will inevitably add further complexity, time and resource implications on determinations of relief, which can be complicated and contested enough.
It is also worth noting that this proposal goes against the Independent Review of Administrative Law’s (IRAL’s) report
, which recommended a wholly discretionary approach to suspended quashing orders (para 3.68) and made no recommendations about prospective-only orders. The potential costs to claimants and parliamentary accountability have been lucidly explored by Tom Hickman QC
. If a court regards the remedy as ‘adequate’, a public body may continue to apply unlawful regulations or decisions to the claimant.
The bill also introduces an ouster clause for Cart
judicial reviews except in a limited number of scenarios (clause 2). Though the initial debate on Cart
related to the accuracy of IRAL’s statistics, key questions now include whether the money saved – approximately £400,000 a year
– justifies these proposals given the low comparative cost to government and the certainty that vulnerable claimants using, say, the asylum and social security tribunals will be put at exaggerated risk of unlawful decision-making. It is in the nature of any legal system that some errors will go uncorrected incidentally, but it is another thing to build that risk into the system.
In a similar vein of restricting judicial discretion, the Nationality and Borders Bill
imposes a requirement on tribunals to ‘have regard to the principle that minimal weight’ should be given to evidence provided late by a claimant (clause 23). It also provides for expedited appeals processes where a priority removal notice has been served (clause 21) and a time limit on the provision of certain legal advice (clause 22). Furthermore, the Environment Bill
establishes a procedure called ‘environmental review’, whereby the remedy granted by a court following an environmental law violation does not have coercive effect against a public body (clause 38). The change is substantial but patchwork – a speech here, a statutory direction there (capable of being extended beyond immigration in future), a bill reforming remedies coming through and radical reforms on the backburner, for now.
However, other patterns have little to do with regulating judicial power vis-à-vis the executive. Constitutional changes are not leading inexorably to the same destination. See, for example, the Higher Education (Freedom of Speech) Bill
, which touches on important issues of freedom of expression and association in universities, but has little to do with public law debates on judicial power – indeed, the bill expressly creates a new rights-based civil action (clause 3).
Ministers are walking a Hogwart’s staircase to constitutional change – a proposal, a retreat, a reform, a manoeuvre – not necessarily arriving at the same destination. PLP intends to launch an online constitutional change tracker later this year to assist in the ongoing debate on the constitutional dynamics of this period.