Government’s curious balancing act

Legislation will be introduced, the Queen said last week, to ‘restore the balance of power between the executive, legislature and the courts’. That was a curious thing for the government to promise.

If the legislature alone can restore the balance, the other two powers must be inferior. There is no need for new legislation if a sovereign parliament can always reverse the decision of a court.

Secondly, as Sir Jonathan Jones pointed out, there are no plans to restore the balance between the executive and the legislature. We saw how easily the government sidelined parliament over the Brexit deal and Covid.

Most curious of all is the notion that the courts must in some way be balanced against the executive. Should judges allow the government to break the law slightly more often? Maybe there could be one day a week – a Friday, perhaps – when ministers could make regulations that went beyond their powers.

A better idea of the government’s thinking can be found in its ‘lobby notes’. These background briefing papers used to be given to the select band of political reporters who are allowed to meet MPs in the Commons lobby – though the notes are now publicly available, if you know where to look.

Subject to consultation, says the Ministry of Justice, a bill will introduce reforms ‘to protect the judiciary from being drawn into political questions and preserve the integrity of judicial review for its intended purpose – which is to hold the government and public authorities to account, apply the intent of parliament, and protect individuals’ rights’. That doesn’t sound too bad – although the judges would say they don’t need protecting.

The main elements of the judicial review bill turn out to be the two relatively uncontroversial reforms proposed earlier this year by the government’s independent review of administrative law, which was chaired by Lord Faulks QC.

The first was that courts should have the power to suspend an order quashing a decision or action. This, says the government, would give a public authority time to rectify errors: it could ensure, for example, that a large infrastructure project was not delayed because an impact assessment had not been done properly. But ‘if the errors are not rectified within the specified timeframe, the quashing order would become effective’.

The second Faulks recommendation is to overturn Cart – a decision of the Supreme Court in 2011 that allowed decisions of the Upper Tribunal in immigration and asylum cases to be reviewed by the High Court. Implicitly acknowledging that Faulks had made this recommendation on the basis of faulty statistics, the MoJ said it was ‘considering this proposal in light of ongoing evidence analysis’. Faulks had found only 12 cases over a period of eight years in which the High Court was able to detect and correct an error of law by the First-tier Tribunal that the Upper Tribunal had failed to correct. The government says around 700 such challenges are brought every year and it is investigating how many are successful.

Lady Hale, who wrote the judgment in Cart and also held that courts had no power to suspend a quashing order, said this month that she didn’t have any problems with the Faulks recommendations. She was careful not to comment on the government’s own proposals, which go much further.

In March, the justice secretary asked for advice on how to beef up ouster clauses, which are designed to exclude the possibility of judicial review. Robert Buckland (pictured) also proposed that remedies should be prospective-only, saving the government having to compensate people who had been denied their rights. Prospective-only remedies might be made a presumption or even a rule to be excluded only in exceptional cases. Similarly, the Faulks power to suspend a quashing order could become a Buckland duty, unless there was an exceptional public interest in giving the order immediate effect.

These proposals have been widely excoriated: Mark Elliott, professor of public law at Cambridge, said they risked ‘eviscerating judicial review’. They are not mentioned in the briefing notes. But the government might have thought that announcing firm plans less than three weeks after the consultation period ended would suggest the process had been a sham. We shall just have to wait and see whether these proposals are included in the bill.

Another reform of interest to lawyers is the Dissolution and Calling of Parliament Bill. This will not only repeal the Fixed-term Parliaments Act 2011 but also revive prerogative powers, exercised by the prime minister, to dissolve parliament and trigger a general election. Two parliamentary committees advised that giving the kiss of life to a defunct prerogative might be more vulnerable to legal challenge than creating a new statutory power. But, on that at least, a cast-iron ouster clause is intended to rebalance the constitution in favour of the executive.

joshua@rozenberg.net