Faculty strongly opposed to judicial review ‘rebalance’

Faculty strongly opposed to judicial review ‘rebalance’

Possible diluting of the judicial review court process, by which a check can be kept on the legality of government decision-making, has been condemned by the Faculty of Advocates.

In evidence to a review of the procedure, the Faculty described as “chilling” any suggestion that some decisions could be made immune from examination by judges.

“There is no serious basis in a modern democracy for the view that public bodies and government authorities are entitled to operate without accountability for material mistakes of law or fact in their actions (or inactions). Such a consideration betrays a misunderstanding of the rule of law and runs contrary to the fundamental principles of democracy,” stated the Faculty.

“The importance of the rule of law should be self-evident: a system of democratic government that pays proper respect to the rights of the individuals present within its territorial jurisdiction must be based on a system of rules, and those rules must be properly interpreted and consistently applied.”

Echoing the words of Lord Drummond Young, the Faculty added: “Otherwise, government is liable to descend into tyranny or anarchy.”

The Independent Review of Administrative Law (IRAL), set up by the UK government and led by Lord Faulks QC, has asked government departments in a call for evidence if judicial review seriously impedes the proper and effective discharge of their functions.

In its submission, the Faculty said there was an overarching premise in the questions that the discharge of functions “is impeded by decision makers having to have regard to the law and that it is open to the executive and the legislature to seek to ‘rebalance’ that issue by preventing or restricting, through legislation, the recourse of citizens to the courts.”

The Faculty stated: “We profoundly disagree with such premise.”

It continued: “The questions posed by this IRAL call for evidence seem…to seek to further a new constitutional programme – the aims of which are to free government from the legal restraints properly imposed upon it by being called to answer before the courts to defend the lawfulness of its actions (whether alleged to be in breach of international or domestic law standards).”

The Faculty feared that decision makers could be given impunity, and the public would be stuck with bad decisions without any legal way of having them reconsidered.

“There is no question of it being appropriate for a government to seek to hamstring the judiciary’s powers, in an attempt to make decision making easier…There is no case for any decisions being made immune from judicial review, since no power conferred on Government is unlimited. Any such suggestion is chilling.

“The simple issue is this: in a constitutional democracy, all power is limited. The location of the boundaries of power is a matter of law and, therefore, the task of the courts to explain.”

Share icon
Share this article: