Analysis of proposals by Dominic Raab to reform judicial review, by introducing a ministerial mechanism to “correct” judicial decisions perceived by the government to be wrong.
Dominic Raab was interviewed by the Sunday Telegraph on 16th October 2021. He put forward a bill that proposed a “mechanism” which “correct[s]” court decisions that ministers consider to be wrong—meaning that ministers could, using various means available to them, such as statutory instruments, overrule or nullify a judgement passed in a court of law, if they believed it to be wrong. In addition, Dominic Raab’s proposed bill contains clauses that would greatly reduce the powers of the European Court of Human Rights in the UK (this blog will not analyse all clauses proposed by the bill). The logic was that judges were acting as legislators and overreaching, by hampering the government in its counterterrorism efforts. In addition, Raab believes that there has been too much litigation in the area of immigration law, which slows down the system. This makes it inefficient and ineffective, and, according to him, his proposed method—restricting the scope of judicial review—would solve that problem. This blog will attempt to demonstrate why such proposals are unconstitutional.
There are 2 main conceptions of the Rule of Law; A. V. Dicey’s and Lord Bingham’s. A central pillar of Dicey’s conception was parliamentary sovereignty — that the UK parliament is the highest law-making body; the legislation it passes is binding, and cannot be questioned; parliament can choose to make/unmake any law whatsoever, and cannot either be bound by anybody; the constraints on parliament are political and diplomatic, not constitutional. Many commentators, such as the Canadian academic H. W. Arthurs, argue that Dicey’s conception of ROL is so outdated as to no longer merit serious consideration. This view, however, is partly incorrect in the British context at least, as the UK constitution, unlike the constitutions of countries such as the USA or India, is uncodified/unwritten. This means that parliamentary sovereignty, which was a central part of Dicey’s conception, remains an integral part of the UK constitutional order. Raab’s proposals disrespect parliamentary sovereignty. Parliament is supposed to make laws, not the government.
Lord Bingham’s conception of the Rule of Law depended on 8 sub-rules, but we will only examine 3 of them. Sub-rule 1 states that the law should be clear, predictable and accessible. If a judicial decision were to act as authority on a point of law, and a piece of ministerial-designed legislation (or delegated legislation) were to retrospectively overrule it, all three requirements of this conception wouldn’t be met.
Another of Lord Bingham’s sub-rules stated that ministers and public officials should exercise their power in good faith and reasonably. Ministers are supposed to be accountable and not have unfettered discretion; the result of Raab’s mechanism being enforced would be that mechanisms to comply with this requirement are removed. Several judicial review decisions deal with citizens’ fundamental rights, and if ministers didn’t like it, they could overrule it, blatantly flouting the accountability requirement.
Finally, Raab’s proposals disrespect the separation of powers principle, whereby legislative, judicial, and executive branches of government perform different functions, under public and judicial scrutiny. This is thought of as a good principle for two reasons: first, because it helps act as a rights protection mechanism and secondly, it promotes the efficiency of government, taking into account factors such as the composition of governmental bodies, the scope of their powers and their vulnerability to outside pressure. As we follow the Westminster model—cabinet ministers (the executive branch) are also required to be MPs—the lines of separation are already blurred. Raab’s proposal would place a disproportionate amount of power in the hands of the executive which could allow them to act in a way incompatible with citizens’ fundamental rights, and therefore, against the Rule of Law.
The UK doesn’t have a codified constitution, but it does have constitutional principles, which are to be found in the common law and in statutes. Therefore, it is argued that the UK does have an unwritten constitution. Dominic Raab’s proposal has been explored through the lens of three of these principles and found to be unconstitutional. Therefore, as will be clear from the above analysis, the answer to whether the proposed bill to curtail judicial power is constitutional would be ‘no’.
By Abhishek Dhol, First Year student – Bachelors of Law (LLB), Queen Mary University of London