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.’
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