21st July 2021
I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.
But I cannot, because they have not.
At least not in the bill as originally published.
The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.
One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.
The latter has the strange quality in a government proposal of actually being a good idea.
For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).
But they too saw the proposals as mild and uncontroversial.
Lord Anderson QC, an independent peer:
The JR Bill will need hawk-like scrutiny, but this call to the faithful suggests it may be less damaging than feared. Cart JRs will end but no mention of ouster clauses. And an express and unfettered judicial power to suspend quashing orders would be OK. https://t.co/qVJn53IkyX
— David Anderson (@bricksilk) July 19, 2021
Lord Pannick QC, via my near namesake the president of the law society:
David Pannick suggests this should be a time for celebration because the proposals on JR are so limited. Celebration? @JoshuaRozenberg or is the template simply being set for widespread ouster provisions that the LC proffers will work. https://t.co/8llJzqK7Pn
— David Greene (@LitLawyer) July 21, 2021
And via Joshua Rozenburg:
These reforms have just been welcomed by Lord Pannick QC. He thinks the Judicial Power Project will be disappointed by the paucity of the proposals on judicial review, compared with the consultation paper. https://t.co/KtRk2AUHjA
— Joshua Rozenberg (@JoshuaRozenberg) July 21, 2021
We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.
And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.
There is also the detail about fettering judges’ discretion in respect of the new quashing orders.
But all this said: this is a significant (and welcome) law and policy anti-climax.
This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.
Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.
But as this blog previously described, the government did not get the consultation response it was looking for.
Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.
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