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The Judicial Review Debate: From Partnership to Friction

Published online by Cambridge University Press:  28 March 2014

Andrew Le Sueur
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DURING AUTUMN 1995 JUDICIAL REVIEW BECAME NEWS IN THE United Kingdom. Tabloid and broadsheet newspapers, radio, television and Parliament provided fora for ministers, Conservative backbench MPs and journalists to debate the apparent growing willingness of the judiciary to intervene in politically contentious government decisions. The tone of the debate was often hostile; sometimes vitriolic. We were told that there was a crisis. According to an editorial in The Times, ‘it is tempting to observe a pattern emerging, a potentially alarming hostility between an overmighty executive and an ambitious judiciary’. Radio and television journalists described a situation of ‘mutual resentment and suspicion’ and ‘unprecedented conflict between a Conservative government and the judiciary’. The Daily Express denounced ‘the sickness sweeping through the senior judiciary – galloping arrogance’ and the Daily Mail accused judges of giving ‘the impression – perhaps a false impression, but nevertheless a real one – of acting on a political agenda of their own’.

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Articles
Information
Government and Opposition , Volume 31 , Issue 1 , January 1996 , pp. 8 - 26
Copyright
Copyright © Government and Opposition Ltd 1996

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References

1 See e.g. the Daily Mail, ‘Does this judge think he’s above democracy?’ 2 November 1995:’… Now it seems that any judge can take it on himself to overrule a minister, even though Parliament might approve the minister’s action. This is to arrogate power to themselves in a manner that makes a mockery of Parliament…’; and Brian Hitchen, ‘Beware these legal weevils’, Sunday Express, 1 October 1995, p. 21:’… While European Human Rights judges, some from countries which once sent political prisoners to Siberia, are venting their spleen on Britain, legal weevils here at home are practising their own brand of mischief. Mr Justice Dyson, for instance… ’.

2 See e.g. editorials in The Times: ‘Judge over your Shoulder. Modern courts and the modern politician’, 17 October 1995 and ‘Judicial Moonshine: Howard was right to refuse Moon entry to Britain’, 3 November. Articles included: Nick Cohen, ‘The Long Arm of the Law: government clashes with the judiciary are mounting — and they won’t stop under Labour’, Independent on Sunday, 5 November; Hugo Young, ‘When Judges put Ministers in the Dock’, The Guardian, 17 October; Melanie Phillips, ‘Who watches over the wigocracy? Loss of faith in the democratic process cannot be cured by an inevitably partial judiciary’, The Observer, 12 November; Stephen Ward and Cathy Newman, ‘Judges vs. the Government’, The Independent, 3 November, p. 19. Two leading members of the Bar wrote articles in The Times on 7 November responding to the growing criticisms: David Pannick QC, ‘Why Judges cannot avoid politics’ and Robert Alexander QC, ‘Dangerous games with the law’. For slightly earlier contributions, see Polly Toynbee, ‘Judicial review is mere Elastoplast’, The Independent, 2 August 1995 and Warwick Lightfoot, ‘Costs of an interferingjudgment’, The Times, 3 August 1995.

3 3 November 1995.

4 ‘World at One’, BBC Radio 4,10 November 1995 (an introduction to a news item on R. v. Secretary of State for the Home Department, ex p. Pierson).

5 Martha Kearney, ‘Newsnight’, BBC 2, 3 November 1995.

6 4 November 1995.

7 2 November 1995.

8 See R. v. Lancashire County Council, ex p. Huddleston [1986] 2 All ER 941 at p. 945 (Lynne Huddleston challenged a decision of the local authority to refuse her a higher education grant). See also R. v. Monopolies and Mergers Commission, ex p. Argyll pic [1986] 1 WLR 763 at p. 774.

9 ‘Public Law-Private Law: Why the Divide? A Personal View’ [1986] Public Law 220 at p. 230.

10 See e.g. R. v. Secretary of State for the Home Department, ex p. Pegg [1995] Crown Office Digest 84: ‘the system in relation to prisoners serving mandatory life sentences was essentially unfair but the power of correcting the unsatisfactory state of affairs is a matter for Parliament’; and R. v. Ministry of Defence, exp. Smith [1995] 4 All ER 427 (any decision on the future of the policy barring all homosexuals from serving in the armed forces rested not with the courts, but with the government and Parliament).

11 For detailed analysis of the judicial review caseload, see further Sunkin, M., Bridges, L. and Mészáros, G., Judicial Review in Perspective, London, Public Law Project, 1993.Google Scholar

12 Sunkin et ah, op. cit., p. 24.

13 See Sunkin et ah, op. cit., p. 25.

14 For instance: R. v. Secretary of State for the Home Department, ex p. Pierson, 10 November 1995 (Home Secretary should not have departed from a trial judge’s recommendation on the minimum period a person serving a mandatory life sentence had to serve before release on licence); R. v. Secretary of State for the Home Office, ex p. Moon, 1 November 1995 (person about to be refused entry to the United Kingdom on the ground that his presence would not be conducive to the public good ought to have been given an opportunity to make representations before the Home Secretary made a final decision); R v. Secretary of State for the Home Department, ex p. Norney and Others, 28 September 1995 (unlawful for Home Office to have policy of not referring discretionary life prisoners’ cases to the parole board, except in exceptional circumstances, until they actually served the full ‘penal’ period of the sentence, thereby causing prisoners to be detained beyond the time considered to be necessary to deterrence and retribution); R v. Secretary of State for the Home Department, ex p. Fire Brigade Union and others [1995] 2 WLR 464 (no power for minister to use non-statutory powers to introduce new tariff payments for the Criminal Injuries Compensation Board when he had refused to make commencement order to bring more generous statutory scheme into operation).

15 In May 1985, R. v. Secretary of State for Social Services, ex p. Association of Metropolitan Authorities [1986] 1 WLR 1. In June, R. v. Secretary of State for Social Services, ex p. City of Sheffield (unreported). In July, R. v. Secretary of State for Social Services, ex p. Cotton, The Times, 5 August 1985. In October, R v. Secretary of State for Social Services, ex p. Association of Optical Practitioners Ltd, The Times, 17 October 1985. In November, R v. Secretary of State for Social Services, ex p. London Borough ofCamden (unrep.); and Court of Appeal decisions in R. v. Secretary of State for Social Services, ex p. Bomore Medical Supplies Ltd [1986] FLLR 231 and ex p. Cotton, The Times, 14 December 1985.

16 Sunkin et al., op. cit., p. 19.

17 See Harlow, Carol and Rawlings, Richard, Pressure through Law, London, RouUedge, 1992.Google Scholar

18 A recent example is R. v. Secretary of State for the Environment, ex p. Friends of the Earth (1995) 7 Admin. L.R. 26 (also in the Court of Appeal, 25 May 1995). The pressure group argued, unsuccessfully, that government was taking inadequate steps to comply with a European Community directive on minimum quality for domestic water supplies. The Supreme Court Act 1981, s. 31, creates as a condition precedent to a court adjudicating that applicants have standing — ‘a sufficient interest in the matter to which the application relates’.

19 Law Commission, Administrative Law: Judicial Review and Statutory Appeals, Law Com. No. 226 (H.C. 669), 1994.

20 R. v. H.M. Customs and Excise, ex p. Eurotunnel pic [1995] Crown Office Digest 291.

21 R. v. Secretary of State for Agriculture, ex p. Dairy Trade Federation [1995] Crown Office Digest 237.

22 The Politics of the Judiciary, London, Fontana Press, 4th ed., 1991.

23 See e.g. ft v. Secretary of State for Defence, ex p. Smith, The Times, 6 November 1995 (Court of Appeal).

24 de Smith, Woolf and Jowell, Judicial Review of Administrative Action, London, Sweet & Maxwell, 1995, p. 295.

25 de Smith, Woolf and Jowell, ibid., p. 375.

26 See note 14, above.

27 de Smith, Woolf andjowell, op. cit., p. 549.

28 R. v. Ministry of Defence, ex p. Smith and others [1995] 4 All ER 427 at p. 440.

29 The Times, 6 November 1995.

30 R. v. Secretary of State for the Home Department, ex p. Norney and others, The Times, 6 October 1995.

31 E.g. R. v. Secretary of State for Transport, ex p. Factortame (No. 2) [1989] 1 AC 603 (provisions in the Merchant Shipping Act 1988 were suspended on the ground that they were arguably inconsistent with the right to freedom of establishment guaranteed by article 59 of the Treaty of Rome); R. v. Secretary of State for Employment, ex p. Equal Opportunities Commission [1995] 1 AC 1 (sections of an Act declared contrary to Community law as indirectly discriminatory against women under the EC Treaty); R. v. Secretary of State for Health, ex p. Richardson, The Times, 27 October 1995 (64-year old man successfully sought judicial review of delegated legislation which set different ages at which men (65) and women (60) were exempt from paying charges for National Health Service prescriptions).

32 Lord Taylor, the Lord Chief Justice, controversially issued a press statement responding critically to a speech made by Michael Howard MP, the Home Secretary, at the 1995 Conservative Party conference.

33 Sir Richard Scott is a Court of Appeal judge.

34 E.g. the ruling of the Court on the shooting of IRA terrorists in Gibraltar by the SAS: McCann v UK, The Times, 9 October 1995.

35 These contributions include: Sir Stephen Sedley, ‘Human Rights: a twenty-first century agenda’ [1995] Public Law 386; Lord Woolf, ‘Droit Public — English Style’ [1995] Public Law 57; Sir John Laws, ‘Law and Democracy’ [1995] Public Law 72.

36 See ‘Does this judge think he’s above democracy’, Daily Mail, 2 November 1995.

37 See, for instance: R. v. Ministry of Defence, ex p. Smith [1995] 4 All ER 427 (Divisional Court) and The Times, 6 November 1995, (Court of Appeal) (ban on people of homosexual orientation serving in the armed forces not unlawful); R. v. Secretary of State for the Home Department, ex p. O’Brien and others, 11 October 1995 (lawful for Home Office to direct that high-risk prisoners convicted of terrorist offences receive only closed visits behind glass partitions); in two cases, the courts affirmed the view that decisions taken by the Attorney General could not be subject to judicial review challenge (R. v. Attorney General, ex p. Ferrante [1995] COD 18, decision of A-G not to order new inquest into death of Royal Marine not reviewable) and R. v. Attorney-General, ex p. Taylor, 31 July 1995 (no jurisdiction to review A-G’s decision not to prosecute newspapers for contempt of court after Taylor sisters’ conviction for murder quashed after prejudicial newspaper reports of the case during the trial); R. v. Secretary of State for the Home Department, ex p. Goswell[1995] COD 223 (Home Secretary, when he overturned decision of disciplinary tribunal that police officer found to have assaulted member of the public, did not have to disclose to victim documents explaining his reasoning); R. v. Secretary of State for Agriculture, ex p. Dairy Trade Federation [1995] COD 237 (interest group barred because of its own delay from challenging validity of new milk marketing scheme); R. v. Secretary of State for the Home Office, exp. Ram [1995] COD 250 (challenge to Home Secretary’s refusal to refer conviction, allegedly a miscarriage of justice, to Court of Appeal refused); R. v. Secretary of State for Home Department, exp. Flynn [1995] COD 274 (lawful, even after completion of the Single Market, for immigration officers to continue to demand production of passports of people arriving at Dover from France); R. v. HM Customs and Excise, exp. Eurotunnel pic [1995] COD 291 (Channel Tunnel operators barred from challenging the validity of law permitting cross-Channel ferry operators to sell duty-free goods after completion of Single Market); R. v. Ministry of Agriculture, Fisheries and Food, ex p. Hamble Fisheries (Offshore) Ltd [1995] COD 114 (department could validly refuse to licence trawlers following change of policy); R. v. Secretary of State for the Environment, ex p. Friends of the Earth (1995) Admin. LR 26 (lawful for minister to accept undertakings from water companies to bring domestic water quality up to EC law standards, rather than taking formal enforcement action).

38 See Kerry, , ‘Administrative Law and the Administrator’, Management in Government, No. 3, 1983, pp. 170–171.Google Scholar

39 For further discussion of this strategy, see Sunkin, M. and Sueur, A.P. Le, ‘Can Government Control Judicial Review?’, Current Legal Problems, No. 141, 1991, p. 161 CrossRefGoogle Scholar.

40 The Times, 2 November 1995, p. 1.

41 Michael Howard MP, BBC Radio 4, 4 November 1995.

42 The Concept of Law, Oxford, Oxford University Press, 1961, p. 12.

43 Cohen, Nick, ‘The Long Arm of the Law’, The Independent on Sunday, 5 11 1995, p. 18.Google Scholar

44 See 17th Report of the Public Accounts Committee, session 1993–94 and 3rd Report of the Foreign Affairs Committee, session 1993–94.

45 R. v. Secretary of State for Foreign and Commonwealth Affairs, ex p. World Development Movement [1995] 1 WLR386.

46 ‘Today Programme’, BBC Radio 4, 29 September 1995.

47 1 October 1995, p. 21.

48 3 November 1995.

49 H.C. Deb., vol. 265, col. 390, 2 11 1995.

50 See Boulton, C.J. (ed.), Erskine May’s Treaties on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed., London, Butterworths, 1989, p. 380.Google Scholar