The Guardian view on judicial review: hands off the rule of law
No page in the Conservatives’ 2019 election manifesto generated as much attention and comment as page 48. On this page, the manifesto put forward a scatter-gun collection of constitutional, political and legal proposals. Together they seemed to signal a wide-ranging assault on the established rights of parliament, the judiciary and the citizenry to act as checks on government. The manifesto promised a constitution commission in the new government’s first year that would produce proposals to “restore trust in our institutions”.
Not much has been heard of this commission since then. In large part that is doubtless because the Covid-19 pandemic has meant the government has enough other things on its plate. There has, however, been speculation that the commission has been quietly shelved, to be replaced by a series of ad hoc mini-commissions. If that is true, then the first of these may be the one announced by the lord chancellor, Robert Buckland, at the end of July into the process of judicial review.
It is too soon to judge whether the judicial review panel – or any other putative mini-commissions – is more than a figleaf to cover the possible demise of the larger project. But it would be a serious mistake to relax. The issues covered on page 48 of the manifesto are too important for that. As long as Dominic Cummings and Munira Mirza rule the policymaking agenda in Boris Johnson’s government, the appetite for assaults on Britain’s liberal values and institutions is unlikely to decline.
As expounded by Lord Bingham in The Rule of Law, judicial review means that ministers and officials must exercise their powers “in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”. Parliament confers hundreds of such powers on ministers and officials in every area of law. It is therefore an essential pillar of the rule of law and of the necessary control of government.
This country has no written constitution. Its law has evolved organically over centuries. Judicial review has always been integral to this process. It is not a new invention. It also works. When a complaint is upheld, the courts normally require an official to go back and take a lawful decision, or to refrain from doing something that would be unlawful. Without judicial review, governments can proceed unlawfully – and they will.
This is absolutely not politics by other means. That accusation was made in the Tory manifesto and repeated by Mr Buckland when he launched the judicial review panel. It is a childish calumny. The accusation reflects the government’s anger when the supreme court ruled that last summer’s prorogation of parliament was unlawful. Anger is no basis on which to do any of the things that the panel have been asked to look at – things like limiting the areas of law in which applications for judicial review can be considered.
Nor is it a good basis for doing something with such potentially large consequences as quickly as the government is doing. The panel is supposed to report before Christmas. That suggests that consultation will be minimal. Restriction of judicial review would be an explosive move. The panel and the government should decide to go no further down this path. Right now, ministers have far more urgent things to do.
