The Jersey Law Review - February  2003

JUDICIAL REVIEW IN ENGLAND AND WALES - THE STATE OF THE ART^[1]

Michael Beloff QC

Introduction

1     Judicial review is a phenomenon of both England and Wales, and the Channel Islands^[2] - the legal vocabulary on the subject of judicial control of abuse of executive power is substantially common to each of those jurisdictions - and, of course, further afield.  I have appeared in judicial review matters in courts in nine Commonwealth countries – and was instructed to appear in Bangladesh on a complex nationality dispute involving a prominent politician until I discovered, as I had feared, that only Bangladesh citizens can appear as advocates in their courts and it is an imprisonable offence for anyone else to seek to do so!

2     In Brunei, I appeared, instructed by an expatriate English solicitor based in Kuala Lumpur, against an Australian silk, instructed by a local Malay solicitor, in front of a former judge of the Court of Appeal in Hong Kong, who was a New Zealand national^[3], and in Bermuda before a Court of Appeal consisting of two members of the Hong Kong Court of Appeal, and one eminent judge from Jamaica^[4].  Nothing could better illustrate the international character of the subject.

The reach of public law

3     When I was called to the English bar over three and a half decades ago, administrative law was scarcely recognised in practice as an independent subject.  No set of barristers’ Chambers proclaimed itself a public law set; no major city firm of solicitors specialised in it, or even had a dedicated department^[5].

The rebirth of public law[6]

4     The development in the intervening period has been well chronicled, but is startling nonetheless.  Judicial review applications, then measured in tens annually, and called applications for prerogative orders are now measured in thousands.  The reasons are many.

5     The first paramount is the growth of ‘the regulated society’^[7] – the result of increasing intrusion, by governments of whatever political colour, into the affairs of the citizen.  There are few areas of national life – education at all levels, health, transport, welfare, financial services, the law itself – that have not been subjected to new, often controversial legislative schemes in the last two decades – sometimes more than once.

6     Secondly, the potential rewards of public law litigation have increased; so judicial review has become a paying proposition for the profession: concerned with the affairs of the City, the construction industry, aviation, the information superhighway and the like and not merely the asylum seekers, the homeless or children with SEN.

7     Thirdly, there has been an increasing awareness of the potentialities of public law among individuals and, in particular, pressure groups as a means of protracting a campaign from outside into court.^[8]  When the Greenpeace challenge to the Thorp nuclear plant, based on the alleged inadequacy of the consultation process before operations, which might lead to radioactive emissions, was instituted, Otton J noted that the applicant was -

“an entirely responsible and respected body with a genuine concern for the environment … who, with its particular experience in environmental matters, its access to experts in the relevant areas of science and technology (not to mention the law) is able to mount a carefully selected, focused, relevant and well-organised challenge.” ^[9]

8     Fourthly, the reduction in the role of Parliament as an effective watchdog over the executive has produced by way of reaction a sense of obligation to intrude in judges from the era of Lords Reid and Denning via that of Lords Wilberforce and Diplock to that of Lords Bingham and Woolf.  Lord Woolf when MR, said in a public lecture that the tension between the judiciary and the executive was no more than a sign that “judicial review has been working well during a period when other restraints on the executive were not as great as ideally they should be”^[10].  The BBC legal correspondent, Joshua Rosenburg, has more vividly described those tensions in a book entitled Trial of Strength^[11].

9          Lord Devlin, a Law Lord, said in 1956^[12] -

“The common law has now, I think, no longer the strength to provide any satisfactory solution to the problem of keeping the executive, with all the powers which under modern conditions are needed for the efficient conduct of the realm, under proper control.  The responsibility for that now rests with Parliament.”

The exact reverse has actually occurred.  Lord Devlin was a great judge, but a poor prophet.

10     Fifthly, there is the personality and character of the judges themselves, more activist, perhaps, even self-consciously, than that of their predecessors in the period of Lord Devlin’s strictures – but, in the words of a Civil Service pamphlet, designed to educate bureaucrats to avoid judicial intervention ‘over your shoulder’.

11     Sixthly, the procedural reforms of the Rules of the Supreme Court in 1977, underpinned by the Supreme Court Act 1981, freed the law from ancient anomalies, and the Woolf reforms in the Civil Procedures Rules^[13], although impacting less on public than on private law, have consolidated the process.  The Latin names for the prerogative orders have gone (although habeas corpus is retained).  The claim form is intended to provoke an acknowledgment of service in which a defendant, intending to contest a claim, should set out his grounds for so doing. Time limits are tighter. The permission stage (as leave is now called) anticipates a measure of case management.

The principles of public law

12     The principles of judicial review have become coherent and sophisticated.  ‘Any judicial statements on matters of public law if made before 1950 are likely to be a misleading guide as to what the law is today’ said Lord Diplock.^[14]  This would, however, outlaw the still lively Wednesbury – I say “lively” with caution, since in a case concerning a prisoner’s right to legally privileged correspondence Lord Cooke said “the day will come when it will be widely recognised that the Wednesbury case was an unfortunately retrogressive decision in English administrative law.”^[15]  At heart administrative law, in its modern English incarnation, is designed to oblige public authorities to act lawfully, fairly and reasonably.

Lawfulness

13     Lawfulness requires the public authority to act in accordance with the deemed intention of the legislature in conferring powers upon it.  A public authority must use only such powers as it has (a primary jurisdictional issue).  At common law, private people can do anything which the law does not forbid; public bodies can do by contrast only what the law has actually authorised.  Moreover public authorities may use their powers only within the limits of the discretion conferred upon them, take account of only relevant considerations and discount irrelevant considerations (a secondary jurisdictional issue).  The exercise of process which has to satisfy the test of legality includes the making of delegated legislation^[16].  More striking still is the case of Ex p Bancoult^[17] where an ordinance removing British Indian Ocean Territory inhabitants to Mauritius was struck down thirty years on.  It was held that the primary power to make laws for “peace, order and good government” did not extend to the wholesale removal of people from their homeland^[18].

14     The key cases are Wednesbury^[19] (which identifies the obligations attendant upon an exercise of administrative discretion and Padfield^[20] (which held that there is no such creature as an unfettered discretion and that discretion is always conferred for a purpose).

15     The identification of what is a relevant consideration – and what is a statutory purpose makes use of statutory language, particular and general, Government papers preceding the legislation, the ‘mischief’ which the legislation is designed to correct and in a radical break from the traditional approach in Pepper v Hart^[21], within strictly defined limits, ministerial statements made in introducing legislation could assist in its interpretation in courts^[22].

Fairness

16     Fairness first requires that the decision maker not only be, but be seen to be independent of the issues required to be decided.  Here the key case was Gough^[23] which laid down a test of “a real danger of bias”, (i.e. what was probable, not merely possible) and applied it from the point of view of the court); but this has recently been modified so as to align it with Commonwealth case law and the case law of the ECHR in In Re Medicaments No.29^[24] and refined still further in Porter v Magill^[25] making it clear that the test was an objective one of “real possibility”.  More recently, and uniquely, in the appeal over General Pinochet’s extradition, the House of Lords had to apply it to one of their own number, Lord Hoffman, who had failed to disclose his directorship of Amnesty International, a party appearing before the House in the appeal.^[26]

17     Fairness secondly requires that the decision maker accords the object of the decision a full opportunity to deal with issues relevant to the decision.  The required fullness of the opportunity is coloured by what is at stake.  For example, where liberty or reputation are involved, legal assistance may be mandatory, where an initial grant of some commercial benefit is involved, it may not be.  English law has tended to distinguish between three situations: those where something is given for the first time; those where something is being renewed (where, it is suggested, there may be a so-called legitimate expectation of renewal) and those where something is being taken away – akin to imposition of a penalty.^[27]  There is a sliding scale of fairness appropriate to each with increasingly heavy duties imposed upon the decision maker as a decision moves from category one to category three.  Not only should the decision-maker hear the potentially affected party, but in a situation of competition between two candidates he should treat both sides equally.^[28]

18     Fairness is the modern substitute for natural justice, whose two rules were writ in Latin nemo judex in causa sua and audi alteram partem.  The change from the phrase to the word: illustrates linguistically the new flexibility of the law.  The answer to the question “Is it fair?” allows the Court much space for fact sensitive judgment.^[29]  And whereas in other areas Judges themselves allowed a margin of appreciation to decision makers so that they would not stigmatise a decision as void for irrationality simply because they would themselves have decided the case the other way, in the area of fairness, they impose their own view.^[30]

Reasons

19     Although a right to reasons has not yet been recognised as a pervasive aspect of fair procedures, it is becoming less an exception, than a rule subject to exceptions, not least because reasons enable the Courts to exercise their supervisory role more effectively and detect whether a decision is or is not flawed by error.^[31]

Irrationality

20     Whether rightly – or as Lord Cooke’s prophesy has suggested in Daly – wrongly, the irrationality threshold in formal terms remains high; on occasions courts may stigmatise as irrational a policy with which they vehemently disagree – this is a key source of friction between judiciary and executive.  [However the intrusion of proportionality as a ground for judicial review, while likely to increase the friction, has pushed irrationality as I shall suggest later, to the threshold of redundancy].  The courts have also said that where no reasons were given for a decision, and should be, they may infer that the decision was irrational but only where reasons are to be expected.^[32]  So procedural and substantive laws coalesce and feed each other.

Intensity of review

21     The intensity of review differs depending upon whether the issue is at the outer or inner limits of justiciability.  In Mercury Energy Ltd v Electricity Corporation of New Zealand^[33]  it was held that if it is found that a public sector contract was awarded for corruption, the courts will intervene; but they will not second guess an award made in the exercise of bona fide commercial judgment.  By contrast, where a decision by a public authority invades a fundamental right, it has been held that ‘anxious scrutiny’ should be given to the basis of and reasons for that decision.  In  ex parte Moon,^[34] Sedley J observed that ‘The law on close scrutiny … amounts today to a doctrine that the court will demand clear justification for an executive decision which interferes with an important right”; especially in the field of immigration where the right to liberty and sometimes even the right to life is at stake.^[35]

22     It is not only the degree of scrutiny involved but the rigour of the test applied which is attracted at common law by the human rights context.  In ex parte Smith,^[36](which concerned a ban on gays in the army) Sir Thomas Bingham MR said -

“In judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important.  The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision will be reasonable …”.^[37]

23     And recently the courts have, in the exercise of statutory construction, developed a test of legality so that general words are held as inept as ambiguous words to infringe human rights.^[38]  And the development of the concept of a “constitutional right”, for example of access to a court, has stimulated judges to ring fence such rights still further.^[39]

24     Where the Convention rights are engaged in another medium of the HRA the degree of scrutiny intensifies still further – not, as Lord Steyn stressed in Daly a merits review, but one which recognises a narrower concept of discretionary judgments on the part of the Government (legislative or executive) than the Strasbourg margin of appreciation, or even the pre-HRA Common Law test;^[40] it requires consideration of the balance struck and the relative weight accorded by the decision-maker to various interests, and identification of a pressing social need to justify a minimalist interference.

Sources: Euro law

25     I turn from consideration of principle to consideration of sources.  The supremacy of community law enshrined in the European Communities Act 1972 can, in appropriate circumstances, lead to the disapplication of domestic statute as in ex p. Factortame (No.2)^[41], Marshall v Southampton and South-West Hampshire HA (Teaching) (No.2)^[42]and ex p. Equal Opportunities Commission^[43].  This is novel for the UK even if not for countries – with a written constitution – which conventionally test legislation against the superior norm of a written construction.  I draw attention also to a less obvious consequence of the United Kingdom’s accession to the Treaty of Rome, that is to say, the infiltration of the principles of civilian public law, of which proportionality is only an example, into the bloodstream of English jurisprudence.  In Alconbury^[44] Lord Slynn suggested that proportionality, a familiar concept to the lawyer in Luxembourg or Strasbourg, should apply across the board to administrative decisions – a proposition that is sustained by considerations of coherence, if nothing else.  Sledgehammers (originally steamhammers) should not be used to crack nuts.

Other Euro principles

26     These include -

• the principle of legal certainty by which the citizen must be able to foresee to a degree that is reasonable in thecircumstances, the consequences which a given act may entail;

• the principle that citizens should be protected against retroactive acts;

• the principle of equal treatment i.e. like treatment be accorded to like cases^[45] (and its corollary that different treatments be accorded to unlike ones);

• the doctrine of legitimate expectation requiring public authorities, save in situations of overriding public interest, to honour their promises or adhere to their practices, another Community derivative, is a cousin to the principle of fairness.^[46]  The protection of such legitimate expectation extends beyond the field of procedural law into that of substantive law (i.e. not only that there be a right to be consulted prior to policy change, but a right that the policy itself be not changed, subject, it may be, only to overriding considerations of public interest).  In ex p. Coughlan^[47] concerning the proposed closure of an old people’s home, in which the applicant had been promised a room for life, the Court of Appeal decided – in a radical judgment – that whether it was fair to defeat such legitimate expectation was a matter for judicial assessment.  No particular deference would be paid to the executive view.  It also refined the situations in which legitimate expectation could be relied on into a series of particular categories, each with different elements.  It repays the closest study.

ECHR

27     Some of the Community law principles to which I have referred are designed to guarantee what may loosely be called human rights against the abuse of executive power.  This is, of course, because the European Convention on Human Rights (ECHR) is itself part of the fabric of European Community law; and the European Court of Justice case law makes it clear that the Convention is at least relevant with regard to the due implementation of Community law.

28     But the ECHR was always relevant in English public law, irrespective of Community law.  There is, as LordBridge puts it, ‘a presumption that the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations’.^[48]   Notwithstanding this, in other more subtle ways the ECHR exercised its influence even before its embodiment in domestic law in the HRA.^[49]  It was used to resolve uncertainty, to fill gaps in the common law, to buttress its principles, and as a measuring rod to judge its efficacy.  Where an administrative discretion arises under an Act which was passed only in loyal response to a decision of the Strasbourg court, the ECHR became mandatory material consideration.

29     Judges also accepted that their exercise of discretion must be informed by the ECHR.  Section 78 of the Police and Criminal Evidence Act 1984 gives the judges a discretion to exclude evidence in the interests of trial fairness.  But in R v Khan^[50] the House of Lords said that Article 6 should be taken into account.   The Human Rights Act 1998, which came into force on  October 2nd 2000, and has incorporated the ECHR into domestic law, has powerfully reinforced this trend.

30     English judges have for long operated by reference to a series of presumptions which impliedly recognise that they should be slow to construe legislation as eroding liberties,^[51] presuming that, in the absence of clear words, the state -

• will not take away property rights unless compensation bepaid;^[52]

• will not interfere with privacy or property;^[53]

• or contract;^[54]

• will not deprive a man of his liberty;^[55]

• nor put his life or health at risk;^[56]

• nor restrict his rights to family life^[57] or his freedom of assembly or speech^[58] or religion^[59] or conscience^[60];

• nor make him liable to punishment;^[61]

• nor compel him to incriminate himself.^[62]

31     The articulation of fundamental rights in administrative law was particularly well established.  Judicial dicta at the end of the last century already exposed the grounds upon which local authority byelaws would be struck down for unreasonableness, if, for instance, they were found to be partial and unequal in their operation between different classes; if they were manifestly unjust; if they disclosed bad faith; or if they involved such oppressive or gratuitous interference with the rights of those subject to them such as could find “no justification in the minds of reasonable men”.^[63] Kruse v Johnson has been used to recognise a common law objection to discrimination.

32     The English courts indeed, in advance of the Human Rights Act, adopted the vocabulary of positive rights and erected some such rights to a peculiarly protected plane such as freedom of expression^[64] or to access to justice.^[65]

33     The main building blocks in the HRA^[66] are these -

(1)    Almost all the substantive rights found in the ECHR are now part of domestic law.^[67]

(2)    They are expressly made binding upon public authorities – a concept with flexible edges.^[68]

(3)    The courts are obliged, as far as possible, to construe all legislation, primary or delegated, pre- HRA or post, compatibly with Convention rights.  This is a powerful interpretative tool, going beyond mere use of the HRA to resolve ambiguity or generality and licensing a forced, if not illiterate, construction.^[69]

(4)    The courts can, if such compatibility cannot be found because of the clarity of the legislative language, make a declaration of incompatibility, and a fast track method of amending the offending legislation is provided to the executive and to the legislature.

(5)    The courts cannot disapply primary legislation.  The HRA is not a paramount constitution.

34     There are unresolved conundrums in the HRA.  Does it, for example, apply to relations between private persons at all?  Professor Sir William Wade QC says ‘yes’; the courts as public authorities must make it do so.  Buxton LJ says ‘no’; the ECHR was designed to protect citizens against the state; and the HRA reflects that precept.^[70]

35     But the current is not flowing in the single direction only.  Beneath the surface, the indirect influence of the HRA has been already profound.  As I have observed, Lord Steyn has pointed out in Daly that this demands, in a variety of ways, a more intense scrutiny than has previously been exercised by the courts even in cases where human rights were in play.

36     More directly, statutory interpretation, where Convention rights are engaged, has been revolutionalised; reading in, reading out, reading down are now all permitted.  In R v A the House of Lords in effect rewrote section 41 of the Youth, Justice and Criminal Evidence Act 1999 (in a manner avowed by Lord Steyn to be “linguistically strained” to allow evidence of a previous sexual relationship to be admitted in a trial of rape – a remedy which (whatever its merits) flagrantly flouted the obvious intention of Parliament.  Declarations of incompatibility, of which there have been few, place the ball in the legislature’s court – to play or not to play.  Treating legislative language as plasticine allows by contrast judges to determine the law.  All these trends will fortify the exercise of judicial review authority which is already altering the balance of powers in our Constitution between unelected judges and elected  politicians.

37     The areas in which the judges have made most significant creative use of the Convention, to fashion a right of privacy, to embellish the right to free expression, to anchor the citizen’s and even the prisoner’s right to protected communication with his lawyer, to equate (all but) unfairness in a trial with unsafety of conviction, to decline to deport even those accepted to be a threat to the United Kingdom, but exposed to risk of death in their own country (the consequence of the historic Chahal case, won by the UK Government in the Strand, but lost in Strasbourg) may prove to be just those in which the interests of civil liberties may conflict  most intensively with those of national security.  In an age newly darkened by the clouds of terrorism, the first chapter of the HRA may be written, but we are a long way from reading the last word^[71].

Who – whom?

38     The who – courts have expanded both the concept of ‘sufficient interest’ entitling a person to apply for judicial review^[72] and the concept of ‘public authority’ (against whom such application may be made.^[73]  Nowadays the true position is that anyone who is not a busybody is accorded locus; few people litigate without interest although English law has not yet advanced to the stage of a “Common Cause” applicant.^[74]

39     The whom – it is now the nature of a body’s powers rather than the source of them which dictates a body’s amenability to judicial review.  Whether the source of governmental power derives from statute, statutory instrument, order in council or the prerogative is, since Datafin^[75] at least, immaterial; the courts consider the nature of the activity, not the nature of the ancestry.  For example, the Bar Council,^[76] and self-regulating organisations under the Financial Services Act 1986^[77] have been held amenable to judicial review.  This pragmatic approach is a reaction to the reality of power in modern British society; and is especially important where nationalised industries e.g. in the utility sector are privatised.^[78]

40     Moreover, the continued recognition of the dividing line between public and private authorities as targets for judicial review becomes less important because the courts are dissolving the differences in the obligations imposed upon them, where the private bodies exercised discretionary power e.g. sports regulatory bodies,^[79] or trusts operating in the public sphere^[80] or companies – by directors exercising a discretion^[81].  Then they appear to be obliged not only to act fairly but also to act reasonably in the broadest Wednesbury sense.

Standard setting

41     Judges in the public law area indeed see themselves as not only deciding cases, or laying down general principles of laws but also as improving the standards of public administration.^[82]

Remedies

42     The remedies of public law are partly historic and partly more modern.  The historic remedies are creatures of public law certiorari, prohibition, mandamus.  The more modern remedies are injunction and declaration,^[83] products of private law.  In the reforms of 1977 the public and private law remedies were aggregated under a new procedure known as judicial review.  The result of this amalgamation was to involve the House of Lords in a piece of judicial law making in holding that the former option of utilising more than one form of procedure had been necessarily abolished in the normal case.^[84]  It was an abuse of process to start a writ action when judicial review was available.  Predictably, and despite my warnings as an advocate that this would happen, defendant public authorities constantly took procedural points and postponed by this tactic the resolution of substantive issues.  It took two decades for this formalism to be expelled from the law.^[85]

43     The main common feature of public law remedies is that they are discretionary in nature: they can be refused on grounds of delay;^[86] lack of utility; interference with good administration or with the rights of third parties;^[87] improper conduct by the applicant; or the existence of an available alternative remedy.^[88]  The English Court of Appeal has recently stressed the importance of avoiding litigation wherever possible, and has referred to the court’s power, even in the public law sphere, to encourage resolution of disputes outside the litigation process.^[89]  At the level of interim remedies, in England a stay extends to an executive decision as well as to implementation of a decision of inferior court or tribunal.  And in England there is now a capacity in a Court to grant an interim declaration.^[90]

Compensation

44     There is no remedy under English law for ultra vires administrative action (i.e. abuse of power in its variegated forms) unless it also amounts to a civil wrong in private law – negligence, breach of contract, nuisance or breach of statutory duty.^[91]  Courts can award damages for private law wrongs in the context of judicial review; although whether restitution can also be made is still not finally decided.  Negligence is the dominant tort of the day, but the courts are still wrestling with the problem of how to define the duty of care of a public body exercising discretionary powers.^[92]  At least six major cases have reached the House of Lords in recent years. 

45     The question whether breach of statutory duty gives rise to private law as well as public law rights is also a vexed one; generally courts tend to say that where welfare rights are allocated under a statutory scheme, remedies are public, not private. The courts are emphasising that what needs to be considered is the intention of Parliament.^[93] The tort of misfeasance in public office particular to public authorities, has undergone a revival in recent years.  The current test as to whether liability arises is whether the public authority or officer acted maliciously or consciously in excess or abuse of power.^[94]

46     The last frontier may be crossed if judges were to revive the approach of Sir Edward Coke (reflected, incidentally, in the dicta of Sir Robin Cooke when presiding in the New Zealand Court of Appeal) that judges could override a statute which itself undermined the rule of law e.g. one which mandated slavery or limitless Parliaments.  An extraordinary example is provided by the Anisminic case where the House of Lords held that an ouster provision which purported to exclude judicial review did so only where the decision was intra vires.^[95]  This was clearly inconsistent with the language of the provision, but also prompts the question:  if the decision was intra vires, would judicial review have lain in any event?  The issue whether the court will tolerate an ouster clause will come into focus in the UK Government’s new anti-terrorism legislation.

Envoi

47     I am one who believes that judges, given their unelected position, must be careful not to usurp the legislature’s prerogatives except where a normatively superior constitution enjoins them to do so.^[96]  At the same time, I believe that the executive, if it steps outside its powers, can only be and must be restrained by the judiciary.  A fearless and independent legal profession is a vital element in the equation as the recent examples of Fiji and Zimbabwe show.  In this, as elsewhere, we are authoritatively informed, there is a “third way”.

The Honourable Michael J Beloff QC has been a judge of the Courts of Appeal of Jersey and Guernsey since 1996; he is the president of Trinity College, Oxford; deputy chairman of the Data Protection  (National Security) Tribunal, Master of the Bench of Grays Inn, first chairman of the Administrative Law Bar Association, member of Blackstone Chambers, the Temple, London.

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