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’

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.

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Please enter a valid email
Please enter a valid email
Must be at least 6 characters, include an upper and lower case character and a number
Must be at least 6 characters, include an upper and lower case character and a number
Must be at least 6 characters, include an upper and lower case character and a number
Please enter your first name
Special characters aren’t allowed
Please enter a name between 1 and 40 characters
Please enter your last name
Special characters aren’t allowed
Please enter a name between 1 and 40 characters
You must be over 18 years old to register
You must be over 18 years old to register
Opt-out-policy
You can opt-out at any time by signing in to your account to manage your preferences. Each email has a link to unsubscribe.

By clicking ‘Create my account’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

Comments

Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in