There are decisions which judges will make and there are decisions they will not make. Of the decisions they make, a judge may consider a matter with anxious scrutiny or a judge may be reluctant to intervene readily. But the decisions a judge cannot make will usually be because the dispute is considered “non-justiciable”. A non-justiciable case is about something which is not the concern of judges.
In the context of constitutional law there are issues which the judges of the High Court will not adjudicate when there is an application for judicial review. A judicial review will not normally deal with the merits of a decision or rule being contested, but the court will look to see if the decision-making or rule-making body has acted legally, fairly, rationally and in accordance with fundamental rights and freedoms. If not, a court may make a quashing order.
Judicial review is thereby already one step removed from a merits appeal. But even with this reserve, there are situations where the High Court will simply not get involved, even with government decisions of the greatest magnitude. Declarations of war and other decisions in respect of foreign affairs, for example, are considered non-justiciable. Here ministers may be responsible to parliament, but they are not responsible to the courts. These are the no-go areas for administrative law.
In 1984 Lord Roskill said in a decision of the House of Lords (then the highest court of England and Wales) that “Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.”
This was because “The courts are not the place wherein to determine whether a treaty should be concluded, or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.”
That seems to have been intended as a statement of common sense. But over time this dictum has been qualified and eroded. Pardons for example are now, in principle, capable of receiving some judicial scrutiny. And Gina Miller, in a spirited case, succeeded in a claim to challenge the prorogation of parliament when the government could not, on the record, explain its decision.
The legal rule that one cannot challenge the decision of the monarch was neatly sidestepped in the Miller case by the claim being in respect of the “advice” of ministers to the Crown. This, of course, is a legal fiction which seems akin to the old saying that it is evil counsellors to blame for a king’s misadventures, or “good tsar, bad boyars”.
But in our system of constitutional monarchy it often will be ministers and their departments which are to blame for exercises of the royal prerogative. Other than in personal matters or the management of the royal household, the king will rarely do anything of legal consequence other than through the government. The boyars are indeed at fault.
In reality ministers make the decisions, but the courts have to pretend that it is the ministers’ advice to the monarch which is at fault. And in this way, form is used to get at substance. The standards of review may vary, but review is possible.
This week there came the latest chipping away of Lord Roskill’s 1984 dictum: whether decisions in respect of honours are justiciable or not. Can the High Court really decide questions about who gets a gong and who does not? Surely this, following Lord Roskill, is a perfect example of where courts should not go.
The case is about an honour which was taken away. The claimant Lord Ranger was made a Commander of the Order of the British Empire (CBE) in the 2016 New Year Honours. But in 2024 the king annulled that honour. The forfeiture was published in the London Gazette. The claimant’s name was added to a list which also includes those stripped of their honours after committing the most dreadful of crimes. However, Lord Ranger had not committed any crime, but had been reprimanded by the House of Lords for his conduct.
The claimant brought a judicial review to challenge this annulment. As he cannot challenge the king directly the claim is framed as an application against the prime minister’s advice that the honour be removed. At an early stage of the case the discrete legal issue was identified about whether such a claim was justiciable. The High Court decision this week was on this preliminary point, with the substance of the claim still to be decided.
In a careful and reasoned judgment, Mrs Justice Lieven held that such a claim was justiciable. The honour was removed following a process, and the claimant was entitled to challenge that process if he alleged impropriety. The claimant has a legitimate expectation of a fair process when something is being forfeited. Lord Ranger maintains that the forfeiture process followed was not fair and so it was unlawful.
The judge made a distinction between an honour being granted and an honour being removed. She said “the decision has significant detrimental consequences for the individual. The revocation of an honour is a highly public decision, which by its nature is likely to attract wide ranging comment and real consequences for the individual. In my view it is not the same as the decision not to award an honour in the first place.”
She added, “No person has a right to an honour and there is no legitimate expectation either of the substantive right, or that any particular process will be followed. Importantly, the decision-making process is undertaken in private, and no public opprobrium follows from the failure to be granted an honour. Therefore, there will be no reputational damage from not being granted an honour. That position is entirely different if an honour is revoked.”
This is an important practical distinction. And it is in accordance with the traditional approach of English law to the removal of licences, permissions and privileges. A court will always be more likely to intervene when a thing is being deprived unfairly and detrimentally, than when a thing has not been granted in the first place, however unfairly.
But it is a practical difference with no real basis in law. If the removal of an honour is justiciable then, in principle, so must be the granting of an honour. The courts may well be unlikely to intervene, but that hesitation only goes to the standard of review and to judicial deference, and not to the very non-justiciability of the subject matter.
And so judicial review has nudged further into the supposed “no-go” areas of judicial review. The province of administrative law has expanded again. The High Court can now look at matters which it would not have looked at before.
The 1984 dictum of Lord Roskill has been often discussed. It was not even the basis for the decision in that House of Lords case, and it was not a view expressed in the other law lords’ opinions. Some doubt that it was a correct expression of the law even then. But it certainly is not now.
Any expansion of the province of administrative law has wider implications, especially where that expansion is in respect of ministers and departments using the powers of the royal prerogative (even if framed as “advising” the king). And perhaps one day, in a suitable case, it will finally be admitted that there have never been no-go areas for judicial review, and that it is always a matter for the judges if they intervene or not. The courts can go where they want.
