It is "chilling" for the UK Government to suggest that the powers of the courts when exercising judicial review might be curbed, the Faculty of Advocates has said.
Faculty has released its submission to the UK Government’s Response to the Independent Review of Administrative Law, in which, among other reforms, ministers propose to limit the effect of a ruling by the courts that ministers have exceeded their powers.
Judicial review "requires flexibility and discretion to be afforded to the court so that it can deal with the whole range of cases brought before it", Faculty believes. "Any suggestion that additional flexibility and discretion be given to judges should be welcomed. Any suggestion that the court should be subject to mandatory matters where its hands were tied should be resisted."
Founding on the rule of law as the supreme authority in the United Kingdom, Faculty points out that "its application is administered through a balance of the three branches of government and not through attempts by one branch to curb or blunt the role of the others".
Judicial review is the exercise by the judiciary of its constitutional power, as a branch of government alongside the legislature and the executive. "The judiciary, in this regard, plays a key and vital role in the governance of the United Kingdom in that it is the body which holds the executive legally accountable for its actions and decisions", Faculty states.
"This role is mirrored in that of the legislature, which is tasked with holding the executive politically accountable between general elections on behalf of the public. Thus, any intervention by statute in a manner which is designed to restrain the ability of the judiciary to carry out its constitutional function would be wholly inappropriate and would be a breach of the separation of powers."
There is therefore "no case for any decisions being made immune from judicial review, since no power conferred on Government is unlimited. Any such suggestion is chilling. It is the essential province of the judiciary to police those limits".
It adds: "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."
Opening its submission, Faculty challenges a number of assertions in the Government's paper that are "clearly predicated on, doubtless inadvertent, misunderstandings of the law". These include that "the Scottish Parliament is a body which can act lawfully in an unreasonable manner", which Faculty says is a misreading of AXA General Insurance v Lord Advocate (2012); and the notion of the role of the courts as "the servants of Parliament", a quote from Lady Hale taken out of context.
"Judicial review of public authorities plays an essential role in a modern democracy", Faculty asserts. "The simple issue is this: in a constitutional democracy, all power is limited."
It further submits that "As a matter of principle, given that judicial review is not a reserved matter, our view is that any changes should be restricted to England & Wales."