Lord Chancellor's keynote speech on Judicial Review.
M2 PRESSWIRE-July 21, 2021-: Lord Chancellor's keynote speech on Judicial Review
(C)1994-2021 M2 COMMUNICATIONS
RDATE:21072021
Thank you to Policy Exchange for inviting me to speak here today.
I am very grateful for the work that Policy Exchange's Judicial Power Project has done over the past six years. That work seems to me to be crucial in two vital respects.
First of all, scholarly commentary has an important role in developing and refining the law. I am sure that all students of criminal law will recall how the House of Lords in the case of Anderton v Ryan[1] - how shall I put this diplomatically - misconstrued s. 1 of the Criminal Attempts Act. Very soon after that decision Professor Glanville Williams wrote a scathing commentary[2] of the ruling and a year later in R v Shivpuri[3] their Lordships corrected course. When it comes to public law, there can be a tendency in sections of academia to want the courts to expand on their power. I think the Judicial Power Project and the academics associated with it provide an important counterweight to this tendency.
The second reason why I think your work is so important is that the debate about the proper balance of the Constitution is too crucial to be left to the pages of the Law Quarterly Review or of Public Law. It concerns us all whether we are lawyers or not and your work has really brought those issues into wider view.
So, I want to start by saying something about my underlying thinking when it comes to constitutional reform itself. I think it is fair to say that I am guided by three principles.
The very first, is a principle of method and I think it was Michael Oakeshott who put it best:
"To be conservative, then, is to prefer the familiar to the unknown, to prefer the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the superabundant, the convenient to the perfect, present laughter to utopian bliss."[4]
That means, in my book, that one should never seek to reinvent the wheel and that change where necessary should be incremental.
The second part of my principles is the Rule of Law. What I mean is that as a society we are governed by clear rules set in advance and not by the arbitrary choices of those in power. That is a fundamental principle of our Constitution and I would not want any reform to endanger it.
The third is the Sovereignty of Parliament. In order for life in common to be possible, the laws that govern us must be orientated towards the common good. But what the common good means is, of course, open to interpretation. As Winston Churchill said, the least bad way of settling those disagreements is through democracy. It is our Constitution that gives the final say to the elected Parliament, not to the unelected branches of the state. I think that is a very sensible settlement which has served us all very well.
Now, in my lecture today I would like to take the opportunity to build on two speeches I made recently concerning our constitution - one at Queen Mary University of London and the other at University College London - and specifically to discuss the government's thinking behind our proposals for reform of Judicial Review.
As I said in both those speeches, our system and our constitution have evolved over centuries to serve the needs of the citizens in our country. It is inevitably the case that through all that change, the constitution will at times require some attention - some constitutional plumbing if you will - to ensure that it continues to strike the right and sensible balance between our institutions.
This afternoon the Government introduced the Judicial Review and Courts Bill, the Judicial Review elements of which I hope do exactly that.
It is clear to me, that the Executive and the Judiciary - as branches of the state - are servants of Parliament, which derives its power and authority through the democratic process from the people of our country. We each have a responsibility to respect what Parliament tells us and how it wants us to interact in the interests of just outcomes from the laws it creates and the powers that it grants to us.
The Judicial Review elements of the Bill grew out of the Independent Review of Administrative Law. In their report the IRAL Panel charted developments in Judicial Review over the past 50 years or so. The Panel wrote at length about the diminishing field of non-justiciable areas[5], highlighted the courts' inconsistent approach regarding nullity, and reflected on concerns expressed by others around ideas such as the 'principle of legality'.[6]
The Panel also pointed out several instances where the courts have not had remedies at their disposal that provide the flexibility that they need, and that this prevents the courts from dealing with Judicial Review cases effectively. The Panel concluded that, in the main, Judicial Review is not in need of systemic reform[7], and the answer to any judicial overreach is judicial restraint, something which does not require legislation[8]. These are views with which I strongly agree.
For me, this has been a process of reviewing the changes to Judicial Review over the past 40 years - both in individual cases and in the context of our constitutional balance - and asking this very sensible question: is Judicial Review in our country functioning as it should?
I will focus today on one half of the proposed reforms - removing Cart Judicial Reviews. You will see from the Judicial Review and Courts Bill that the ouster clause we are proposing primarily removes Cart reviews due to the resources they use. And I think Lord Brown's words in the Cart judgment are relevant: "The rule of law is weakened, not strengthened, if a disproportionate part of the courts' resources is devoted to finding a very...
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