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Are the Courts Overstepping on Parliamentary Accountability?

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About The Author

Jalal Chohan (Guest Contributor)

Jalal Chohan LL.B is an aspiring barrister and current Bar Course student at the University of Law London. Outside the law, he enjoys travelling with his most recent and favourite trip being to China. He is also a keen but poor swimmer.

United Kingdom Supreme Court

“The fact that the minister is politically accountable to Parliament does not mean that he is therefore immune from legal accountability to the courts.” Lady Hale (Miller no2)

 

Parliamentary accountability, the idea that where governments and their agencies should fail to fulfil their responsibilities, mechanisms are available to hold them politically responsible to Parliament. Ministers are accountable to parliament for their decisions, for example, public spending is authorised by Parliament and routinely stays within the limits set. While the government is politically responsible to Parliament, they are also legally required to act in accordance with both primary and secondary legislation set out by parliament.

way of making sure of this is through the process of Judicial Review. Where the court can review the legality of a decision made by a public body and strike it down as being unlawful where it is in breach of the underlying legislation. Although Judicial Review has enabled the courts to hold the executive to account, on numerous occasions the courts have been accused of expanding their empire’ and ‘becoming more activist ’entering into the sphere of parliamentary accountability.

 

The Development of Judicial Review

In the early days of modern judicial review, JR was a way for the public to bring forward legitimate complaints where the state was encroaching upon the legal rights of individuals, and it soon began to take form as a way of holding government to account for decisions which negatively impacted private individuals. A string of cases, expanding the role of judicial review followed. The case of Wednesbury set the rule that a court may scrutinise the substance of a decision if it were ‘so unreasonable that no reasonable authority could ever have come to it.'

The GCHQ case also allowed courts to review decisions made by non-statutory bodies and the exercise of prerogative powers by ministers.

Lord Diplock codified the classification of grounds for judicial review, namely:

  • (1) illegality;
  • (2) irrationality; and
  • (3) procedural impropriety,

These grounds further limited ministers’ approach to legislating and gave the courts an increasingly supervisory role, which helped in ensuring ministerial accountability to parliament and the rule of law. However, Lord Diplock argued that an approach like that of the US which leads the court to substitute their views on policy for those of the executive would be problematic.

The English courts could avoid such a problem by handling judicial review claims sensitively, minding their boundaries and limits. The number of cases for judicial review seen by the courts rose sharply and with it came the increasing tendency of the courts to rule on matters, which would influence parliament. The administrations' dissatisfaction with judicial review grew and; it was described as being ‘damaging to the administration, rather than—in the bigger picture—helpful in structuring administrative decisions’

Parliament had realised this new threat to its wide-ranging powers and sought to limit the jurisdiction of the courts by including an ouster clause in the case of Anisminic. This was a clear warning of ‘no judicial trespass’, which a majority in the House of Lords refused to apply on the basis that an action to limit the court’s jurisdiction would have possibly led to a lack of effective accountability.  

According to Professor Paul Craig, ‘if the courts did not intervene ministers or agencies would be allowed to exercise a power in areas not specified by parliament’. Allowing ministers to do this would be dangerous and could lead to poor decision making. However, there is a risk that ‘increased judicial intervention leads to accountability overkill’.Dr Jason Varuhasof Melbourne University suggests that the ombudsmen and political accountability measures set out by statute are sufficient in dealing with poor decision-making.

Contrary to this J. D. B. Mitchell critically examined the Ombudsman by saying they“fit so uneasily with the British doctrine of ministerial responsibility as to be irreconcilable with it.” The courts arguably seek to hold the executive to account due to the shortcomings of other modes of parliamentary accountability.

Recent criticism from Prime Minister Boris Johnson, whose statements about whether or not judicial review is ‘'going too far' are most likely referring to recent actions by the courts in restraining executive power in the cases of R (Miller) v Secretary of State for Exiting the EU and R (on the application of Miller) v The Prime Minister.

Both cases have been described as ‘ways for the courts to enter into the political arena’ a controversial statement considering the need for courts to remain impartial. The courts certainly did make decisions in both cases which had huge political consequences, but they did so without fear of reprisal through effective legal justification.

Miller No.1 

The courts required the executive to pass a bill to leave the EU via the parliamentary process, which required a majority decision, as opposed to allowing the executive to initiate the process for leaving the EU, relying on the royal prerogative. The government’s attempt to trigger Article 50 using the royal prerogative was declared unlawful. While the decision may have had political consequences, (some saw this as an attempt by the applicant to delay Brexit using the courts), the issue at hand was entirely one of law and whether or not the executive would be able to repeal the European Communities Act 1972 without the authorisation of parliament.

Miller No.2 

The courts made new law in the judgment in Miller No.2. In this case, the Prime Minister directed the use of prerogative power by the Queen to prorogue parliament. This prorogation would lead to parliament effectively being shut down thus preventing the bill for leaving the European Union from passing through parliament. During this period the executive would not have been accountable to parliament (due to prorogation) and this would leave accountability only to the monarch who possesses a residual and theoretical power.

In the Court of Appeal, it was held that previous cases indicated that the court first had to consider whether or not the substance of a prerogative power was justiciable. The court’s refusal to review political matters was well established and so the Court of Appeal decided to allow the continuation of the executive’s prorogation.

Prior to this, Lord Roskill had stated in Council of Civil Service Unions v Minister for the Civil Service[1984] UKHL 9, “The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or parliament dissolved on one date rather than another.”

On appeal, the Supreme Court unanimously (and controversially) decided the Prime Minister had acted illegally, and that to prorogue parliament went against parliamentary supremacy in that it freed ministers from parliamentary scrutiny and accountability. In making this decision the Supreme Court effectively made new law in seeking to conserve the authority of parliament. Michael Lane wrote in detail about the prorogation case (there referred to as Cherry v AG for Scotland)in two parts for Keep Calm Talk Law in September and October 2019. One justification for this seemingly unpredictable behaviour of the courts came from Lord Woolf who wrote - ‘if parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was without precedent’.

There were also points raised in Miller No.2, which support the decision of the courts. From a document published by the government (The Judge Over Your Shoulder), there is a ‘Duty of Candour’ for the decision-maker to provide the court with information to assist the court in coming to a decision. In Miller No.2 neither the Prime Minister nor any senior official was prepared to sign a witness statement confirming that the decision to prorogue had nothing to do with Brexit. This was far from the norm and a failure to give adequate reasons may be seen as unreasonable. 

Lord Upjohn said that if the minister [did] not give any reason for his decision it may be... that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly.”

To allow the executive to frustrate parliament, in this case, would have gone against the justification for the growing competence of the courts (in keeping up parliamentary accountability).

Fighting ‘perverse consequences’ 

The Prime Minister’s statement of judicial review going too far is outrageous to those who practice in the field of public law. Legislation has been passed to restrict judicial review and bills rejected on the basis of being too restrictive, yet the supposed issue of judicial review going too far remains and the intention of the executive to further restrict judicial review continues to exist. The government regards judicial review as political and judges have stressed, ‘judicial review is not and should not be regarded as, politics by another means.’

The current government’s latest attack on judicial review is manifested in The terms of reference for the independent review of administrative law. This document seeks to make the process of challenging adverse government decisions more difficult by limiting the information available to make judicial review claims, tightening the law of standing, shortening the amount of time available to bring a claim and making it more difficult for certain types of remedy to be granted by the court. The document also attempts to make it more challenging for unsuccessful applicants to appeal by making it harder for interest groups to intervene and the costs of judicial review more onerous.

Restricting an already limited area of law where claimants are being “deterred from pursuing claims because of the adverse costs risk” is completely contrary to the suggestion that judicial review goes too far. It is clear judicial review simply cannot go far enough due to the cost restrictions put forward by the government. It is worth noting the comments of Lord Irvine, former Lord Chancellor, who remarked in R v Huang that "the massive expansion of the administrative state, more than any other factor has prompted judges to develop the principle of judicial review."

Conclusion

The Judicial Review procedure may indeed lead to consequences that are troubling to the executive, including those which hinder their political aims and agendas, but it does so in the protection of parliamentary sovereignty and the rule of law.

Members of parliament who have been frustrated by the courts may seek ways of avoiding legal scrutiny, but the intention of the judges is clear - judicial review is here to stay. Lord Steyn remarked in Jackson that if parliament sought to abolish judicial review, the courts would have to determine “whether this is a constitutional fundamental which even a sovereign parliament cannot abolish”. The courts' willingness to defend this common law invention against parliamentary aggression further evidences the courts' view of the righteousness of this procedure and the executive’s view of the dangers it poses to effecting policy.

Without effective parliamentary accountability through the courts, governments would be unaccountable for unlawful decisions. The courts now seek to dominate this ‘no man’s land’ in holding the executive to account due to the shortcomings of other modes of parliamentary accountability.

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Tagged: Administrative Law, Judicial Review, Public Law

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