Citizen v executive: the case continues

Judicial review may be its own worst enemy. The exponential growth of administrative law challenges since the inception of the 'new' procedure in 1981 has led to concern on two fronts.

First, the clash between citizens and the executive has resulted in some notable defeats for the Government in general and Michael Howard in particular. This, in turn, has led to a perception, which is possibly deliberately fuelled, of a constitutional impasse between the judges and the politicians.

The second concern is quite different but is, equally, a by-product of the success of judicial review. Lord Woolf's proposals for procedural reform have, at their core, the twin imperative of saving cost and court time. The Crown Office List log-jam is, roughly, the same as it was nearly 20 years ago. One disturbing statistic is that cases take twice as long to litigate as they did then.

Critics of the system may take opposing views of the intrinsic value of judicial review but their solutions share the common end of reducing the number of cases coming before experienced judges specialising in administrative law (the 'nominated' judges) and, thereby, limiting the scope for what in 1981 seemed likely to happen: the development of a public law court for the resolution of public-interest challenges.

The advantages of a public law, or constitutional, court are numerous. Judicial review affects not merely individual litigants but the wider public as well. It is what the US jurist Lon Fuller termed a 'polycentric' procedure.

Although the effect of a judicial review is widespread, it is highly specialised. For example, principles in homelessness cases may be, and often are, as relevant to entirely different subject areas such as planning or commercial challenges.

Judges sitting in cases on Crown Office List meet regularly to discuss the parameters of their jurisdiction. Common approaches to issues such as delay, the use of discretion and standing are elaborated and refined by a small, highly experienced cadre of judges.

Yet even the current specialisation would seem amateur to our counterparts in, say, France and Germany. The recent Law Commission paper on judicial review in its section on case management demonstrated that Crown Office judges only sit for three weeks at a time and that most sit for no more than six weeks a year.

The need for specialisation is increasing. If Labour wins the next general election we are likely to see the incorporation of the European Convention on Human Rights: this will affect judicial review on an unprecedented scale.

Most of the case law in which judges are said to defy the executive are founded on interpretation of rights-based entitlements. Sir John Laws has said, extra-judicially, that the traditional principles of ultra vires by which judges construe “that which Parliament intends” are outmoded and no more than a “fig leaf”.

An incorporated convention affords even more scope for judicial activism. But the spectre of human rights being left to develop piecemeal outside the strongly-focused scrutiny of our current public law process is disturbing.

Similar considerations attach to European Union law. Even expansionist judicial review judges lag behind their European counterparts. Injunctions against the Crown were a part of European judicial review long before they were embraced in domestic law. Proportionality is still but a gleam in the House of Lords' eye whereas it has been alive and well in Europe for many years.

Without a clearly defined public law procedure in this country the means by which citizens obtain redress against the excesses of the executive will not disappear but it will become less inconsistent and will be less widely reported. The high profile quality of judicial review will wither. As with the threatened erosion of legal aid, there will be fewer specialised advocates because many cases, formerly heard in the High Court before a nominated judge, will be determined as part of a private law dispute or before a tribunal or inferior court.

Public law in this country is at a critical stage in its history. The procedural exclusivity, introduced by cases such as O'Reilly v Mackman and Cocks v Thanet District Council in 1983, paved the way for more than a decade of expansionism.

Over that period we have witnessed the evolution of an ever-widening duty to give reasons, the acceptance of the doctrine of legitimate expectation and, amongst other developments, the welcome liberalism that has allowed public interest groups such as Greenpeace to bring challenges in the public interest.

This achievement should be recognised, not squandered.