Judicial Review — Quite Enough of a Fairly Good Thing?

Judicial Review —
Quite Enough of a Fairly Good Thing?
*This is a revised version of a paper delivered at the PAC Conference,
University of York, September, 1988.
Professor Gavin Drewry,
Royal Holloway & Bedford New College
Here is a contract made by a fishmonger and a carrier of fish who
know their business, and whether it is just and reasonable is to be
settled by me who am neither fishmonger nor carrier, nor with any
knowledge of their business. (Lord Bramwell, 1883) (1) For myself
I believe that in the present state of the democratic process in
Britain and for so long as one can see into the future, the judge
should share the popular rather than the official outlook and should
judge as the ordinary man judges. Accordingly, I am against any
attempt to make him an expert in anything or to qualify him or half-
qualify him in any particular science. (Lord Devlin, 1975) (2)
S. A. de Smith’s epic work on judicial review of administrative action begins with
a ringing - and oft-quoted - disclaimer: ’Judicial review of administrative action is
inevitably sporadic and peripheral. The administrative process is not, and cannot
be, a succession of justifiable controversies. Public authorities are set up to
govern and administer, and if their every act or decision were to be reviewable on
unrestricted grounds by an independent judicial body the business of
administration could be brought to a standstill. ’(3)
The book then embarks upon a learned analysis of this ‘sporadic and
peripheral’ phenomenon, extending to more than five hundred pages.
The fourth (and most recent) edition of de Smith’s treatise was published in
1980, at a time when its subject-matter was undergoing something of a
metamorphosis - if not perhaps from caterpillar to butterfly, then at least from
small caterpillar to larger. It was around this time that, in the wake of
recommendations by the Law Commission, the administrative law remedies
available in the Queen’s Bench Divisional Court were being rationalised under
the simplified procedural rubric of an application for judicial review. And, even
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with this widely acclaimed mini-revolution in administrative law only part-
complete, the editor of de Smith’s work was moved to write that:
there has been a striking increase both in the frequency with which
judicial review has been invoked and in the readiness of courts to
intervene. Also noteworthy has been the increase in the use made
of the courts by members of groups (such as immigrants, claimants
for social security benefits and publicly provided services, and
private guardians of the public interest) who were previously
largely conspicuous by their absence from the courts. (~~
And other notable changes - such as the assignment of all administrative law
actions to a common Crown Office List, tried by a smallish group of Queen’s
Bench judges - still lay in the future. The JUSTICE-All Souls report on
administrative justice, published in 1988, takes it to be more or less self-evident
that the recent reforms of judicial review and, even more crucially, the advent of a
Crown Office List, have at a stroke rendered otiose all those years of argument
(led by W.A. Robson, J.D.B. Mitchell, et al) about whether Britain needs a
specialised administrative court, comparable to the French Conseil d’Etat so
scornfully disparaged a century ago by A.G. Dicey. (5) Louis Blom-Cooper, had
already arrived at much the same conclusion in his 1981 Frank Stacey Memorial
Lecture. (6)
Certainly, the 1980s have been exciting times for students of administrative
law. The courts have seemingly, to the acclaim of some observers and the mixed
feelings of others, acquired a higher public profile in being asked to resolve a lot
of issues with high political content - GCHQ, Fares Fare, Gillick, Lohnrho and
the disputed governmental poll tax leaflet - to name just a handful of recent, much
publicised, instances. Interest groups (perhaps nowadays we should include local
authorities and other public and quasi-public bodies in this category) have begun
to see the courts as a significant forum for pursuing their various causes. Phrases,
hitherto more familiar in the United States than in Britain, like ’test case strategy’
and ’public interest litigation’ have begun to feature in the literature of UK
administrative law. (7)
All this has not been confined to the medium of judicial review per se -
though the House of Lords has ruled, in a pair of much-discussed leading cases,
that public law proceedings (there is continuing dispute about the boundary
between public and private law) must in general be brought to the courts by that
route. (8) The enhanced political profile of the courts has extended to other kinds
of proceedings, for instance Official Secrets Act prosecutions (Ponting), and civil
actions for breach of confidence (Spycatcher). The Government has felt impelled
by what it perceives to be a major escalation in the incidence and impact of
judicial review (and probably by a belated recognition )f the inadequacies of
legal training in the civil service (9>) to issue in booklet form its own guidance to
administrators about how to anticipate and avoid the threats to bureaucratic
equanimity posed by The Judge Over your Shoulder. (10)
But appearances can, of course, be deceptive. Maurice Sunkin has shown, by
way of careful statistical analysis, that the apparent quantum leap in judicial
review applications in the 1980s is not all that it seems. Judicial review remains
’sporadic and peripheral’. In Sunkin’s words, ’it appears to have played a
minimal role in the redress of grievances and to have provided the community
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with a very partial and limited check against government illegality’. (11) His data,
showing that the incidence of judicial review is concentrated upon a fairly limited
range of administrative activity (and that the aggregate statistics have been greatly
distorted by the disproportionate numbers of cases in the immigration field), lend
ample support to Harlow and Rawlings’ observation that ’the number of [judicial
review] cases is infinitesimal compared with the millions of decisions taken daily
by public authorities’ (12) - though this of course takes no account of the probable
knock-on effects of major judicial decisions.
Now that the dust raised by the flurry of reform in the early 1980s has settled,
we can see the new order of judicial review for what it is - a tidier, somewhat
more accessible version of the status quo ante. It is still narrowly (and, as argued
below, inevitably) concerned, ’not with the decision, but with the decision making
process’. (13>
Some of the case-law since the mid-1980s indicates that some
judges have become unhappy about what they perceive to be (apparrently not
having read Sunkin’s work) an alarming growth in the incidence of judicial
review, and have begun to take steps to limit its scope (and hence its attraction to
would-be litigants). (14)
There are very good reasons for the non-revolutionary character of change in
this area, primarily constitutional, secondarily procedural and behavioural. The
main premise of this paper is that although in general the recent reforms of
judicial review are to be welcomed, those same good reasons should make us
wary of embarking upon extravagant encouragement of increased judicial
activism in the field of administrative law. This should not be taken to mean that
this writer is opposed to reforms that might have the incidental consequence of
extending recourse to judicial review - such as promulgating a legally enforceable
code of good administrative practice, or improving arrangements for the
coordination and funding of public law proceedings. (15> The paper does not
address itself directly to the issue of whether or not the UK should acquire a Bill
of Rights, though some of the issues discussed have obvious relevance in that
context.
Why then is judicial review still of such marginal importance, and destined, in
the absence of major constitutional reconstruction, to remain so? Is the judge,
peering over the administrator’s shoulder, necessarily to be welcomed by right-
thinking citizens as a sturdy guardian of the public interest? Or should the
’activist’ judge perhaps be regarded as an intrusive busybody, getting in the way
of those democratically charged with the conduct of public business?(16>
At what
point does an expansion in the incidence and scope of judicial review run into the
objection raised by John Griffith to the enactment of a Bill of Rights - ’that law is
not and cannot be a susbstitute for politics’? (1~~ We must begin our discussion
with some necessary constitutional platitudes.
Parliamentary Sovereignty and Judicial Independence
The UK courts operate in the shadow of a sovereign Parliament. This simplistic
statement of a complex truth leaves much room for debate about what the courts
can and cannot do and, in particular, about the scope for judicial creativity in the
interpretation of statutes: this issue is of special relevance to our present
discussion given that, as David Williams, observes, ’administrative law is for the
courts largely an exercise in statutory interpretation’. (1g>
And Carol Harlow
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plausibly suggests that:
Ironically, it may be...