(The following is an adapted version of part of the response of the Wales Public Law and Human Rights Association (“Public Law Wales”) to the IRAL call for evidence)
The devolution of legislative and executive powers to Scotland, Wales and Northern Ireland has now been a feature of the UK constitution for over 20 years. The three devolution settlements establish patterns of governance for the devolved territories which involve a delicate balance between the proper spheres of activity of devolved and UK institutions. Any major reform affecting the powers of one level of government inevitably impacts on the other. As the history of the implementation of the UK’s decision to withdraw from the EU has demonstrated, failure to consider, from the outset, the impact on devolved government of proposed measures, on the misconceived grounds that those measures only strictly relate to matters reserved to the UK level of government, inevitably leads to unpredicted consequences, legislative complexity and an enhanced level of political controversy.
It is therefore disappointing to note the way in which the Terms of Reference of IRAL, as qualified by the explanatory Note on the Scope of the Review, as well as the Introduction to the Call for Evidence, seeks to erect an artificial and arbitrary barrier, based on a distinction between reserved and devolved aspects of government, to proper consideration of reform to the institution of judicial review. Although judicial review is a procedure which applies, in principle, throughout the UK, the Call for Evidence rather naively suggests that the consequential effect of such reform on devolved governance can be limited to “minor and technical changes to court procedure” which will be capable of being disposed of by “careful consideration of any relevant devolved law and devolution matters arising” and an unspecified “engagement with the Devolved Governments and courts”.
The particular position of Wales
The perils of this approach are particularly acute in relation to Wales (see below). Yet in view of the existence of a single England and Wales legal jurisdiction, Parliament has specifically reserved from the legislative competence of Senedd Cymru (the Welsh parliament) “judicial review of administrative action”. As far as the subject matter of the Panel’s deliberations is concerned, the UK Parliament is therefore the only legislature that Wales has. For a reform of judicial review to be contemplated without full and proper consideration of how such reform might impact, even if only consequentially, on the exercise of devolved powers in Wales would mean that Parliament, as the relevant legislature, was being invited to neglect its responsibilities to Wales in relation to such matters.
In addition, the particular way in which Welsh devolution has developed, beginning with an executive model based on the transfer of individual ministerial powers to the Welsh government, including, in some cases, provision for these to be exercised concurrently or even jointly with UK Ministers, means that it can be illusory to classify executive powers exercisable in relation to Wales as either “devolved” or “reserved”.
Finally, the fact that Wales currently shares a legal jurisdiction (including a single judiciary) with England does not reduce the complexity of reforming judicial review in a way that is limited in its application to the exercise of powers by UK ministers. The Administrative Court in Wales is increasingly developing a jurisprudence which reflects the special subject-matter and character of Welsh administrative law, for example the role of bilingualism (see R (On the Application of Driver) v Rhondda Cynon Taf CBC (2020)). The need for a legal jurisdiction able to reflect the particular needs of Wales was a central finding of the 2019 report of the Commission on Justice in Wales led by Lord Thomas, the former Lord Chief Justice. The development, by the Administrative Court, of approaches to judicial review that reflect uniquely Welsh circumstances seems to demonstrate the correctness of that assessment. The consequences of an ill-considered move to introduce into the work of the Administrative Court in Wales significantly different approaches to the actions of UK ministers in relation to Wales from that taken in relation to Welsh ministers and other public bodies in Wales would be difficult to predict. Such a move could, ironically, accelerate moves towards separate Welsh and English jurisdictions, a development to which the UK government has, to date, been opposed.
Constitutional equivalence of the position of UK and devolved ministers
It is necessary to underline the constitutional equivalence between the position of UK Ministers on the one hand and that of Welsh Ministers (and the ministers of the other devolved administrations) on the other. Each can only act in exercise of powers specifically conferred on them – usually by statute but occasionally under the royal prerogative. Devolution operates by allocating such powers to one set of ministers or the other by reference to (a) the subject matter of the power and (b) the geographical area in relation to which it can be exercised. Welsh Ministers can only exercise powers in relation to Wales and provided the power in question relates to a matter that has not been reserved to the UK. (The latter qualification is a simplification. Unlike the position in Scotland and Northern Ireland, where there has been a general transfer of executive powers to the devolved administration in relation to non-reserved subjects, executive powers of Welsh Ministers continue to be defined, to some extent, on an ad hoc basis, reflecting the way in which such powers were originally devolved to Wales. However, as time goes by, the effect of new Welsh legislation is that powers of Welsh Ministers are becoming increasingly aligned with devolved legislative competence. So, the statement is broadly, and increasingly, correct.)
Parallel devolved and reserved powers
In the case of subjects which are not reserved, Welsh Ministers often continue to exercise, in relation to Wales, powers under Acts of the Westminster parliament, for example the Highways Act 1980 or the Town and Country Planning Act 1990, which also apply to England. They do so in parallel with UK Ministers, who exercise the self-same powers, but only in relation to England. Even where devolved legislation (e.g. the School Standards and Organisation (Wales) Act 2013) has now superseded, in relation to Wales, the original England and Wales statute (the School Standards and Framework Act 1998) the general nature of the powers exercised by Ministers continues to be the same in the two countries. The prospect which the Introduction to the Call for Evidence appears to open up, however, is that the availability of judicial review as a procedure for challenging acts of Welsh Ministers might be materially different from that relating to acts of UK Ministers even though the nature of the acts was identical.
In addition to the usual situation in which UK Ministers and their devolved counterparts exercise identical or similar powers but only within their respective geographical areas, there are, in relation to Wales, a significant number of powers exercisable concurrently by UK and Welsh ministers, in relation to Wales. Examples are s.185 of the Housing Act 1996 (definition of persons to be treated as persons from abroad and therefore ineligible for housing benefit) and ss.57 and 58 of the Landlord and Tenant Act 1954 (power to issue certificates relating to the occupation and use of land owned by certain public bodies). For the entitlement of a person whose rights are affected by the exercise of these and other concurrent powers in relation to Wales to depend on whether they had been exercised by one administration rather than the other would clearly be irrational.
A further class of case illustrating the unacceptable consequences of making the availability of judicial review dependent on whether the power being exercised is devolved or reserved relates to the exercise of powers jointly. This can arise where a power has been devolved in relation to Wales but its nature calls, from a practical point of view, for it to be exercised on a cross-border basis, using the powers of one administration in relation to England and those of the other in relation to Wales. Examples of regulations made jointly by a UK Minister and the Welsh Ministers include the Environmental Permitting (England and Wales) Regulations 2016 and the Water Resources (Abstraction and Impounding) Regulations 2006. It would be absurd, in such cases, if there were two different entitlements to seek judicial review of a single set of regulations depending on the claimant’s choice to bring proceedings against the UK Government rather than the Welsh Ministers.
Legal equality as part of the rule of law
The importance of ensuring consistency of approach to judicial review, whatever the nature of the act being reviewed or the particular administration whose action is under examination stems from one of the fundamental elements of the principle of the rule of law – namely that the ability to challenge the legality of governmental decisions should be available equally. Dicey, in his seminal Lectures Introductory to the Study of the Law of the Constitution (London 1885), identified “the idea of legal equality” as a keystone of the UK concept of the rule of law. He famously contrasted it with the continental civil law concept of droit administratif, under which the acts of government officials were subject to special rules different from those of the ordinary law, a state of affairs which was “totally different from the legal situation of servants of the state in England (sic.)” and “fundamentally inconsistent with … the due supremacy of the ordinary law of the land.” Yet the way in which the Review appears to be intending to treat the impact of any reform to judicial review on the operation of devolution would inevitably introduce differences in the amenability to judicial review of different decision-makers (UK Ministers and Ministers in devolved administrations), which would, in the case of Wales, be wholly arbitrary, since they would apply to cases where the respective ministers were exercising identical statutory powers.
The right approach
If there is a case for reform of certain aspects of the judicial review process then it should be examined on a basis that enables its inevitable impact on the exercise of devolved powers to be given the same degree of rigorous scrutiny and public debate as its impact on reserved powers. Whether it is practical or desirable to create, as a consequence of devolution, different rules affecting the availability of judicial review, depending on the subject-matter of the decision or the identity of the decision-maker are questions which should be integral to the Panel’s deliberations. The topic is too important constitutionally, and the risk of unintended consequences too great, for it to be treated as a question of mere consequential detail.
Keith Bush QC (Honoris Causa), Fellow in Welsh Law,Wales Governance Centre, Cardiff University. and Dr Huw Pritchard, Wales Governance Centre, Cardiff University.
(Suggested citation: K. Bush and H. Pritchard, ‘Implications of the Independent Review of Administrative Law for Devolved Government in Wales.’ (22nd Oct. 2020) (available at https://ukconstitutionallaw.org/))