A constitutional court?
13 May 2002
Judicial review, said Sir Stephen Sedley only a few years ago, is about wrongs rather than rights. Of course, that comment could not be made now, in the era of human rights. Yet a forensic Martian wandering into the Administrative Court many days of the week might be forgiven for thinking that it still held good.
Despite the passing of the Human Rights Act, many of the old and stale litany of complaints still clog up the Administrative Court list. In a recent decision of the Court of Appeal in R (on the application of Cowl & ors) v Plymouth City Council, December 14 2001), Lord Woolf criticised the bringing of a case which, despite the eloquence of the lawyers involved, turned on fact rather than law and which contained no justiciable issues of law. That kind of case cries out for alternative dispute resolution. But its true vice, apart from the colossal drain on public funds, is that it conceals what judicial review is, or should be, about.
There has always been a need for the litigating of issues in the public interest. But the traditional propensity of the British for pragmatism has consistently emphasised self-interest rather than principle. In consequence there has been a suspicion of ideas such as the advisory declaration where the judge simply 'declares' the law without applying it to a specific dispute. If the parties to the case do not have a direct interest in the outcome, the courts have been reluctant to hear them. They are classed as 'academic' - perhaps the greatest insult that one Englishman can deliver to another.
But cases decided under the Human Rights Act have demonstrated that principle is becoming increasingly important. The House of Lords has never been so busy and in the past year a new constitutional lingo has crept into legal discourse. It is easy to see why.
For the first time judges are, in all but name, deciding (like the US Supreme Court) on the constitutionality of statutes. The Mental Health Act, the Consumer Credit Act and the Immigration and Asylum Act have all been recent victims of the ammunition given to the senior judiciary under the Human Rights Act, whereby Acts of Parliament can be declared to breach the European Convention on Human Rights.
So, we have a new dynamic in judicial review, that of constitutionalism. But are our courts equipped to meet it? Lord Bingham has argued for a new Supreme Court and he is surely right.
There are a number of possible models for such a court. The one I favour is a Constitutional Court which would hear and decide cases raising purely constitutional issues. It would sit, as the US Supreme Court does, in banc and its members would be selected from those judges or academics who had acquired significant expertise in constitutional and administrative law. The advantage of such a system would be that a consistent body of legal principle would be developed. The present crush on the House of Lords would diminish and the Constitutional Court could hear many more public interest cases than are being heard at present.
There also needs to be reform at a lower level. A few years ago, homelessness cases took up an unjustifiably high percentage of the Administrative Court list, but then statutory amendments took most of these cases back to county courts. This was a good thing both from the perspective of the claimant and the Administrative Court. County courts are an ideal venue for hearing factual disputes; judicial review is not.
In the same way, a number of disputes today, especially in the social welfare field, could be resolved either by mediation or by being transferred to county courts for an in-depth factual investigation. This would free up the Administrative Court for its true work. It would pave the way for the identification of cases on a fast-track to the Constitutional Court. It would be far more cost-effective.
Lord Woolf's civil procedure rules (CPR) were an encouraging start. They have compelled lawyers to keep their eye on the ball. But the CPR aside, the unique position of judicial review and the procedures that should be adapted to give it a fuel injection have not been thought through. This is all the more urgent given the impact of the Human Rights Act. Action is needed - now.