Government misrepresented my report to make assault on judicial review, says former Tory minister

Boris Johnson’s humiliation over unlawful shutdown of Parliament described as ‘clear indication of constitution working’

Rob Merrick
Deputy Political Editor
Wednesday 16 June 2021 19:52
Lord Faulkes says his judicial review report has been misrepresented

A former Tory minister whose report has triggered plans to curb the power of people to mount legal challenges has accused ministers of misrepresenting his findings.

The Ministry of Justice intends to restrict judicial review on the grounds that Lord Faulks found judges are increasingly deciding the merits of laws – which should be the role of Parliament.

But Lord Faulks told an inquiry by MPs: “That wasn’t the language that we used in our conclusions.”

The review – set up after the 2019 Conservative manifesto claimed judicial review was being “abused to conduct politics by another means” – had in fact found its use to be “satisfactory”, the peer said.

“Despite having a number of cases drawn to our attention, we did not think there was something so badly wrong with judicial review that we should start again,” he told the human rights committee.

“Any decision to do something about it, radically, we think would be wrong and potentially contrary to the rule of law.”

No 10 has protested that legal challenges are being mounted by people not directly affected by decisions purely “with the aim of frustrating” the government.

But the curbs are widely seen as retribution for Supreme Court defeats, on Theresa May for starting Brexit without MPs’ approval and on Boris Johnson when his shutdown of parliament was ruled unlawful.

Lord Faulks, a justice minister under David Cameron, described Mr Johnson’s humiliation as a “clear indication of the constitution working”.

And he called judicial review “extremely important” in giving the public a “safety valve to prevent the executive from overreaching or acting in such a way that it is unlawful”.

However, when the Faulks report was published in March, the justice secretary Robert Buckland pointed to a need to “defend the judiciary from being drawn into political questions and preserve the integrity of judicial review”.

He is targeting the greater use of “ouster clauses” in primary legislation, which deny the courts the right to review a government policy or decisions of certain bodies.

A statement read: “The Panel’s analysis identified a growing tendency for the courts in judicial review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made.

“The reasoning of decision makers has been replaced, in essence, with that of the court.”

Asked if those words were “a fair reflection” of his findings, Lord Faulks said it “wasn’t the language that we used”.

However, the peer’s report did back stripping immigrants and refugees of the right to challenge deportation rulings in the High Court.

A new Judicial Review Bill will now overturn a Supreme Court ruling which allows tribunal decisions to be put before the court, to speed up “removals”, ministers say.

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