The Queen’s Speech plans for reform of judicial review (JR) may be less drastic than the rhetoric suggests, the former Treasury Solicitor has said.
Sir Jonathan Jones, who quit last year and is now a senior consultant at City law firm Linklaters, said it did not appear, on the detail provided so far, that the proposed Judicial Review Bill would exclude the courts from any particular areas of policy.
The Queen’s Speech included a commitment to “restore the balance of power between the executive, legislature and the courts”.
It came with the Ministry of Justice currently in the middle of its consultation on JR reform, following the report of the independent panel of experts headed by QC Lord Faulks.
The briefing notes accompanying the Queen’s Speech said the bill would focus on two areas, which were those the panel recommended for immediate reform: allowing for the court’s use of suspended quashing orders to allow for the errors to be corrected within a certain period, and reversing the Cart judgment that made certain decisions of the Upper Tribunal reviewable by the High Court.
The consultation, however, posits further changes not proposed by the panel, such as ensuring ouster clauses – which define the bounds of the court’s jurisdiction in certain issues – are given proper effect.
But, writing for the Institute for Government, Sir Jonathan said: “Reading the detail offered so far, the government’s proposed changes look slightly less dramatic.”
He acknowledged suspicions that the government’s aim was for some areas of its activity to be outside the scrutiny of the courts altogether.
The support for clearer ouster clauses tended to confirm this, although he noted that the courts “have a history of finding ways around such ouster clauses – on the basis that Parliament can never really intend to authorise obvious illegality or to confer limitless powers”.
He continued: “So there was every chance that any new proposal for ouster clauses would not work anyway. In the event, judging from the summary of the Judicial Review Bill just published, it seems that the government may have dropped this idea.
“The other new proposal was that in some cases where a judicial review challenge succeeds, the court might grant only a prospective remedy. The government also floated the idea that there might be a presumption in favour of prospective-only remedies in some circumstances.
“This, however, could have led to injustice, since it would deny redress to a claimant who had already sustained loss because of the unlawful act. Again, it is not clear whether the government is pursuing this proposal. We will need to see the detail of the bill.”
Sir Jonathan concluded that the bill did not look like a major overhaul of JR.
He said: “It does not exclude the courts from any particular areas of policy, and it is difficult to see how it fulfils the government’s stated aim of “[protecting] the judiciary from being drawn into political questions” – the court’s job, as now, will be to determine questions of legality even where they arise in a highly-contested policy space.
“But, to repeat, we will need to see the detail of the bill before we decide where it lies on the spectrum between ‘hollow gesture’, ‘worthy but dull’, and ‘sinister erosion of justice’.”