QC criticises the UK Governments handling of the Faulks Review
David Anderson QC, a top public law barrister from Brick Court Chambers, has accused the government of mischaracterising the findings of the Faulks Review, a key inquiry set up to examine the role of judicial review. He told the Guardian: ‘The minister’s foreword to the consultation claims that the panel identified a growing tendency for the courts to review the merits of decisions, and to replace the reasoning of decision-makers with their own…But the report contains no such conclusion.’
The top ranked silk added that in fact ‘[the] report highlights the importance of judicial review as a backstop against misuse of executive power. It counsels against tinkering, and suggests only two minor but sensible improvements.’
What is the Faulks Review and why is this important to the legal industry?
The government promised to hold an inquiry into the use of judicial review in its election manifesto. Ministers had publicly stated their frustration with a perceived increase in judicial rulings against policy decisions, and alleged that judges were straying into political matters. Judicial review can be used to challenge ministerial decisions, but only by examining the legality of the decision-making process, rather than the merits of the decision itself.
The debate came to a head following the Supreme Court’s unanimous judgment in the 2019 Miller/Cherry case, which held that the prorogation of parliament was unlawful. Lord Faulks QC, chair of the eponymous review, argued that this decision represented an ‘unjustified’ constitutional shift. Interestingly Lord Sumption, a prominent critic of judicial overstep, suggested that while the Supreme Court’s judgment did change the law, this was justified in light of a ‘disgraceful constitutional abuse’ by the government.
The Faulks review has considered the scope of judicial review and the extent to which it is used to legitimately challenge ministerial policy or to improperly hold up the work of government. Various commentators have stated that the review’s conclusions do not call for the far reaching changes the Government is proposing. ‘Ouster clauses’, which limit the Administrative Court’s powers to rule on issues in immigration tribunal judgments, are a key element of the Government’s plans. Robert Buckland, the lord chancellor, has defended the planned reforms, stating that they will ‘defend the judiciary from being drawn into political questions and preserve the integrity of judicial review for its intended purpose.’