19th March 2021
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‘Toulouse’s suggestion was not what Audrey wanted to hear.’
– Moulin Rouge
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Sometimes – just sometimes – in the world of law and policy there are moments when welcome things do happen.
Back in August 2020 this blog covered the government’s announcement of an ‘independent panel to look at judicial review’.
It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.
But.
It is sometimes strange how things turn out.
The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.
In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.
(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)
The concluding observations of the report could have even be a post on this very blog:
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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.
We want to keep this conversation going.
— Ministry of Justice (@MoJGovUK) March 18, 2021
That’s why we’re launching a public consultation to explore further measures informed by the panel’s analysis.
Find out more and have your say: https://t.co/aAQcwtw1cH
(3/3) pic.twitter.com/Jx9IZ5TTWk
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‘We want to keep this conversation going.’
We can bet they do.
Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.
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At bottom, the problem here is a mismatch, a dislocation – such as those recently discussed on this blog.
The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.
The commission, to their credit, looked hard and reported on what they saw.
Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.
Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.
One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.
But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.
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For a more detailed account of the just-published report, see Paul Daly’s blogpost here.
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Oh, a vox pop on a relatively obscure topic, what could possibly go wrong? What, for instance, might be a well constructed response, emphasising the valuable points you make in general, look like, to a lay person?
Asking for a friend.
Please, sir, may we have some more referendums? Preferably one that describes the topic in a couple of vague sentences, lacks any detail of the proposed changes, and hinges on a simple majority of the respondents…
Noticeable how often the consultation document selects from the consultation responses (unpublished so far) rather than from the report itself. Why might they do that?
It is peculiar. We have “world class” courts – almost as good as our test and trace system! – yet something needs to change. These institutions are integral to our success as a nation, yet for some unenunciated reason they need “rebalancing”.
Everything is fine, so we need to break it. But that is essentially the reverse of reality. In fact, everything is *not* fine with the justice system in general and the courts in particular, broadly because they have been starved of money for too long. A lot of fixing is required.
But they want to bugger things up more.
Among the things the Lord Chancellor wants to do, which no doubt to his disappointment were not recommended by the review, are stronger ouster clauses, to stop ministerial decisions being reviewed by the courts. But the review said:
“In the Panel’s view, codification possesses the serious disadvantage that it would enable Parliament (and in some circumstances possibly the executive) easily to oust judicial review by abrogating or altering the statutory code, without any recourse to the common law. The code effectively crowds out the more flexible common law, making it easy and perhaps even a routine matter to change the rules of the game.”
So at least we know what they are doing.
And (I am not making this up: it sounds like Douglas Adams) they want to define nullity – that is, “exactly how and when a use of power is automatically ‘null and void’.”
This sounds exactly like the sort of routine slide-rule/tick-box exercise that the review was counselling against, in favour of retaining the flexibility of the common law.
It seems to be directed at rowing back on over 50 years of jurisprudence since Anisminic – that an unlawful use of a power is null and void, so declaring that nullity is not impeded by an ouster clause.
Forgive the stating of the obvious. The King of the World will not rest until he has upended all that is just, rational and decent. With regards character, status and honesty, the United Kingdom will shortly be worthy of comparison with one of his so-called opere letterarie.
This article in the Guardian seems quite relevant:
https://www.theguardian.com/law/2021/mar/19/uk-government-accused-distorting-findings-judicial-review-inquiry
“UK government accused of distorting findings of judicial review inquiry
Former reviewer of terror laws says minister’s foreword mischaracterises experts’ conclusions”