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Richard Ekins

Professor Richard Ekins is a Fellow of St John’s College and an Associate Professor in the University of Oxford. He leads Policy Exchange’s Judicial Power Project.

Judicial review of executive action is a vital part of the rule of law. The courts rightly hold ministers and other public bodies to the scope of their lawful powers, insisting on procedural fairness and correcting some obvious abuses of power, but aiming always to leave to the public body the decision about how best to exercise the discretion Parliament has conferred.

One constant risk to our constitutional settlement is that courts will go too far in reviewing executive action – that they will promote the rule of judges under the guise of the rule of law.

While in many cases judges certainly observe the proper restraints on their function, traditional insights into the limits of the judicial role are increasingly overlooked.

One sees this trend in particularly striking form in relation to cases where the courts have interfered with institutions intended to realise, or that are central to, political accountability.

The cases include Evans v Attorney General, in which the Supreme Court quashed the Attorney General’s exercise of his statutory power to block disclosure of the Prince of Wales’s correspondence with ministers.

The Attorney General was accountable to Parliament for his exercise of the power and the Freedom of Information Act armed the Information Commissioner to bring before Parliament concerns about the misuse of the power.

As I have argued, these important features of the FOIA were overlooked or set aside by the majority of the Court, which effectively excised the power from the Act.

Likewise, in Litvinenko v Home Secretary, the High Court effectively took over the Home Secretary’s power, under the Inquiries Act, to decide whether there should be an inquiryinto the murder of Mr Litvinenko. The Court lacked the competence to evaluate the relevant considerations, including the foreign policy dimension, but acted rashly anyway.

In evaluating the case, the question is not whether there should be an inquiry, but rather who should decide (answer, per the Act: the minister decides).  Running the two questions together is not good analysis, as my colleague Graham Geehas pointed out.

In a powerful new paper for Policy Exchange’s Judicial Power Project, Dr Jason Varuhas (University of Melbourne, formerly Cambridge) addresses this trend and its constitutional significance. The main focus of his paper is on cases involving the Parliamentary Commissioner for Administration (the Ombudsman), cases which formed a premise of the Evans judgment.

Varuhas makes clear that Parliament intended this institution to be importantly different to legal adjudication, to be closely nested within the political process, such that the Ombudsman was able to inform Parliament about problematic government action and to address inadequate government response by reporting again to Parliament.

Varuhas traces various ways in which courts have encroached upon the Ombudsman process. The most important, which form the focus of the paper, are the Bradley and Equitable Members Action Group judgments, in which the courts reviewed and quashed the ministerial responses to major Ombudsman reports with massive financial implications.

This mode of judicial action, Varuhas contends, was and is deeply problematic and should be wound back by the Supreme Court at the earliest opportunity.  One might add that Parliament should also consider remedial legislation to overrule this line of decision.

These judgments were inconsistent with the structure and detail of the empowering Act. There was good reason for courts not to review the ministerial response at all, let alone to impose (as they did) an elevated standard of review whereby the court goes beyond addressing outrageous cases (assuming it could recognise such in this context) and instead simply evaluates the merits of the minister’s reasoning.

This evaluation is for Parliament and by extending judicial review the courts achieve a kind of accountability overkill.

At best, the judicial action here simply echoes the process by which Parliament, through its committees and otherwise, holds government to account for its response (one important achievement of the paper is demonstrating that this accountability is real: judges and lawyers are wrong to assume that Parliament is supine).

In these cases, the political process worked as it should, but was hampered (held back) by judicial action.

Judicial intervention would be problematic even if the political process had not delivered satisfactory redress or held government robustly to account: there is no general judicial power to compensate for deficiencies in political action.

But judicial intervention in this context is not just redundant it is also harmful, being unnecessary and wasteful, and compromising what should be a fast, informal process.  It also places politics in a legal straitjacket, Varuhas argues, compromising the freedom of MPs and others to comment directly on ombudsman reports or the government response.

This is not just bad for the political dynamics that should follow from a report – which the Act aims to encourage and on which it relies – but also for the integrity of the office of ombudsman.

In this line of cases, the traditional limits on judicial review seem to be crumbling.  As Varuhas concludes, this puts the legitimacy of judicial review in question.

8 comments for: Richard Ekins: A legitimacy crisis in judicial review

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