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02 August 2020
Issue: 7898 / Categories: Legal News , Constitutional law
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Judicial review under threat?

Lawyers have questioned the impartiality of the peer selected to lead an independent panel into judicial review
The Ministry of Justice (MoJ) appointed former Conservative justice minister Lord Edward Faulks QC, now a cross-bench peer, last week to chair the panel of six.

The panel’s terms of reference are to consider whether the terms of judicial review should be codified in statute, whether certain executive decisions should be decided by judges (the principle of non-justiciability), which grounds and remedies should be available, and whether procedural reforms are needed, for example, on timings and the appeal process.

Lord Faulks was previously minister of state for civil justice in David Cameron’s government between 2013-2016. Concerns about his appointment were raised immediately. Among several critical tweets by concerned lawyers, the Secret Barrister pointed out that Lord Faulks was ‘the right-hand minister to [former Lord Chancellor] Chris Grayling at the MoJ [when] Grayling was attempting to restrict judicial review’.

Former Labour Lord Chancellor Charles Falconer wrote: ‘chaired by lawyer who wrote after prorogation case courts’ JR powers should be curbed… Once it’s rubber stamped curbing courts’ powers another check and balance lost.’

On 7 February, Lord Faulks wrote in an article on Conservative Home that the unanimous Supreme Court ruling that prorogation was unlawful ‘constitutes a significant, unjustified constitutional shift’. He wrote: ‘The result of the ruling is that principled limits on the justiciability of the prerogative power to prorogue, including limits firmly imposed by Art 9 of the Bill of Rights 1689, have been set aside.’

The other panel members are Carol Harlow QC, professor of law at LSE; Alan Page, professor of law at Dundee University; Nick McBride, fellow of Pembroke College, Cambridge; planning and environmental barrister Celina Colquhoun, 39 Essex Chambers; and Vikram Sachdeva QC, 39 Essex Chambers, chair of the Constitutional and Administrative Law Bar Association.

Bar Council chair Amanda Pinto QC, said: ‘We should regard [judicial review] as a prized possession because it enables citizens to hold the state to account effectively and to ensure that it uses fair procedures every day.

‘Without it, the rule of law and separation of powers will be undermined and, without them, we may as well wave goodbye to a functioning democracy. We take pride in our system of judicial review and caution against any unnecessary barrier to the public’s right to challenge their government, so will be very interested to see the results of this independent review.’

Issue: 7898 / Categories: Legal News , Constitutional law
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MOVERS & SHAKERS

Cripps—Radius Law

Cripps—Radius Law

Commercial and technology practice boosted by team hire

Switalskis—Grimsby

Switalskis—Grimsby

Firm expands with new Grimsby office to serve North East Lincolnshire

Slater Heelis—Will Newman & Lucy Spilsbury

Slater Heelis—Will Newman & Lucy Spilsbury

Property team boosted by two solicitor appointments

NEWS
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Fresh proposals to criminalise ‘nudification’ apps, prioritise cyberflashing and non-consensual intimate images, and even ban under-16s from social media have reignited debate over whether the Online Safety Act 2023 (OSA 2023) is fit for purpose. Writing in NLJ this week, Alexander Brown, head of technology, media and telecommunications, and Alexandra Webster, managing associate, Simmons & Simmons, caution against reactive law-making that could undermine the Act’s ‘risk-based and outcomes-focused’ design
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