Twentieth Letter to the Lord Chancellor,
Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling MP,
5th December 2014,
Dear Lord Chancellor,
So, you won the vote in the House of Commons on judicial review a few days ago. Congratulations: that is another one in the eye for all those ‘Rule of Law’ johnnies. They really are boring, banging on about it all the time. Your persuading the Commons to reverse the House of Lords amendments on judicial review to the Criminal Justice and Courts Bill is a triumph.
The purpose of judicial review is to ensure that the government acts according to the law. You said in the debate that most government departments face judicial review regularly. There are two alternative remedies for this state of affairs:
(1) government departments could act within the law, or
(2) government departments could carry on acting unlawfully whilst judicial review is curtailed.
You have wisely chosen to take the second option. Or as you put it in the debate “we need to restore common sense to the way in which the judicial review system works, and that is what we are working to do“. How popular you will be with your friends and colleagues in government.
You said about judicial review in the debate “it was never intended to put the courts above the elected Government in taking decisions.” How wrong you were! It is a misstatement of what judicial review is there to do. The government should only act in accordance with such power as the law confers upon it. If a government minister, in the exercise of her powers, acts unlawfully then the courts via judicial review declare it so. The courts, too, cannot act in excess of the power the law confers upon them. Both the government and the courts are subject to the rule of law. So, the courts are not ‘above’ the elected government as you said, but the government (like the court) is governed by the rule of law. Thank goodness you are not a lawyer or you may have had to explain the constitutional position correctly in the debate.
As a result of your excellent changes, whilst:
– the Monarch is subject to the law,
– the courts are subject to the law,
– the citizens of the state are subject to the law
government ministers will be able to act unlawfully without being stopped.
I particularly liked this nonsensical part of your speech in the debate:
As Lord Chancellor I take my responsibility to uphold the rule of law very seriously, but I do not believe that the way in which it has evolved in relation to the current use of judicial review is consistent with or necessary to uphold the rule of law.
Mr Justice Collins after a judicial review in the High Court ruled today that the government’s ban on sending books to prisoners in England and Wales is unlawful. He declared he could see “no good reason” to restrict access to books for prisoners. Thank goodness that in the future your unlawful decisions won’t be subject to these interfering busybodies.
The Executive can now make the law and break the law. This self-serving state of affairs is also called, rather amusingly, tyranny.
Yours, with an authoritarian salute,