Last month, the government announced the membership of the panel who will undertake a ‘review of administrative law’ and published some terms of reference. The chair of the panel will be Lord Edward Faulks, who many fear has already made up his mind that the boundaries of judicial review have strayed too far into political matters: in February, he wrote an article for Conservative Home in which he suggested that the Supreme Court’s decision in Miller/Cherry [2019] UKSC 41 (concerning the controversial prorogation of parliament) was “an assertion of judicial power that cannot be justified by constitutional law or principle.”
Judicial review is of crucial importance to any democracy. It allows the judicial branch of government to check the power of the executive branch of government, to ensure that elected and appointed officials do not exceed the powers given to them by the legislative branch of government. It is a means to prevent corruption and to protect the citizen against, as the Conservative Party manifesto put it [PDF, page 48], an “overbearing state.”
I may write more on this in the months to come. In the meantime, Professor Mark Elliot, Chair of the Faculty of Law at the University of Cambridge, has begun what promises to be a crucial series of posts (1, 2) outlining the importance of judicial review. See also David Allen Green’s post, warning that the government is attempting a power grab.
For now, I’m concerned with something a little more esoteric: accessibility of command papers. Today I wrote to Lord Faulks, urging him to ensure that anything he publishes is available in an accessible, linkable format.
It would greatly enhance public discussion if any such reports were published in HTML format, as well as PDF and paper copies.
Some government and parliamentary papers already appear in HTML format. It is extremely useful to researchers and activists to be able to share links to individual House of Lords speeches, for example. However, this offering is less consistent when it comes to the reports of Select Committees, APPGs and Joint Committees; and is usually missing for command papers and the reports of statutory inquiries. For example, the Chilcott Inquiry report and the Leveson Inquiry report only appeared as PDFs. These are difficult to navigate and it’s impossible to share a link to an individual paragraph. In the 21st century, this is a barrier to engagement.
Let us hope that Lord Faulks appreciates the virtue of accessibility.
The absence of web-native versions of important documents and reports is a particular bug-bear of mine. So much so, that I converted the entire Leveson Report into HTML format because I was annoyed that such a version did not exist. You can read my rationale for that project here.
Speaking of freedom of information… did you know that a ‘Faulks Report’ already exists? In 1975, a Committee on Defamation chaired by Neville Faulks, (a High Court judge and the uncle of Edward Faulks) published a report. It carried many recommendations that supported freedom of expression, such as extending qualified privilege and protections for publishers and booksellers. But it dismissed the idea that United Kingdom should adopt some of the measures in operation in the United States to protect discussion on matters of public interest.
I could not seem to find an copy of the Faulks Committee on Defamation online, or indeed in the academic databases to which I have access. So I submitted a Freedom of Information request to the Ministry of Justice, requesting that they supply a PDF copy. In ‘normal times’ its likely that this request would be denied, because it is available elsewhere (for example, the National Archives). However, due (I assume) to the difficulties in accessing such papers in a time of COVID-19, the Disclosure Team saw fit to fulfil my request. Its a 335 page PDF [16.1 MB] and you can download it from my request page on WhatDoTheyKnow.com.
At the same time, I also requested a copy of the Report of the Committee on the Law of Defamation, also known as the Porter Report (having been chaired by Lord Samuel Porter, a Law Lord). This was published in 1952 and led to the passage of the Defamation Act 1952 c. 66. It was similarly unavailable from academic libraries, and my request was also granted by the Ministry. You can download the 52 page PDF [2.7 MB] from WhatDoTheyKnow.com.
