This was the view of the Faculty of Advocates in its submission to the UK government’s Response to the Independent Review of Administrative Law.

The Faculty believes 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. 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.

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.

“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.”

As such, the Faculty believes there is “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.

“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.”