Yesterday was the first day back for Parliament and so the Government was finally able to announce to the MPs its plans which it made at the end of July to hold what they claim will be an “Independent Review of Administrative Law” or as they released a month earlier on their own website “Government launches independent panel to look at judicial review”. The were two words that were consistent in these two headlines. One was the word review which is clearly not a problem. Indeed the Government needs to spend a great deal more of its time and energy reviewing its proposals. However the second word was Independent and while there may be some very credible people within the review body, the person who is the Panel Chair is certainly not free from party politics. Not only is Baron Edward Faulks a Conservative Peer who was appointed in July 2010 by David Cameron but he was a Conservative Minister from 2014 to 2016 although to his credit he did resign when Theresa May appointed Liz Truss as the Minister of Justice. This is because he is a law professional and so in that sense had the Government appointed a Chair person who was simply an elected MP like Liz Truss this would be much more concerning. However if there is to be an Independent review there are two potential ways to achieve this. The first and ideal is that all of the members must be from non-political places. The alternative is that along with a Conservative member there would need to be a Labour and a Lib Dem member or an SNP so that there was a balance between the parties. In this second case what is vital is that the Chair is someone outside of any of the political backgrounds.
Of course there is a more fundemental question which is why would or indeed why should the Government be allowed to set up this sort of review without gaining support from a range of political and indeed non political settings. After all the Judicial Review is a vital way of ensuring some form of accountability can take place between elections and in a bit more detail than which colour rosette people would choose to vote for.
Yesterday two people went to twitter to mention this, one was Charlie Falconer who is certainly not politically independent and he stated “Bad enough judicial review committee chaired by QC who said Courts went too far in Prorogation case. Now MoJ confirm it will report to Mr Gove, as well as LC. No 10 ensuring courts never embarrass this PM again.” (The LC is Lord Chancellor who announced yesterdays piece). The other person who went to twitter is Debra Allcock-Tyler who is an independent person and she wrote “I find this deeply worrying. Should any executive decisions be exempt from judicial review? Any action by any government be free from scrutiny and challenge? No! Emphatically no!” It totally agree with Debra and it is vital that we find a way to address this.
A definition of the Judicial Review is available from this website and is reproduced below.
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
Examples of the types of decision which may fall within the range of judicial review include:
- Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;
- Certain decisions of the immigration authorities and the Immigration and Asylum Chamber;
- Decisions of regulatory bodies;
- Decisions relating to prisoner’s rights.