JUDGES tend to be either inordinately proud of the role of judicial review in reining in the executive, or acutely conscious of the confines of the remedy.
My experience is that it depends on whether you catch them in administrative law conferences or court. More cynical observers might add that it also turns on the type of case under review. Lord Woolf is widely respected as a law lord of great learning and no little humanity. It was therefore disappointing to hear him say at a legal conference that there are some very important issues waiting to be resolved by way of review proceedings because of the large numbers of immigration and homelessness cases clogging up the system.
It is not difficult to understand judicial affection for the remedy. Judicial review gives great scope for judges to find in line with their sympathies. If absolute power corrupts absolutely, then extensive power is at least congenial. In the area of rights the scope for judicial control is enhanced by the absence of any core yardstick such as might be provided by incorporation of the European Convention of Human Rights.
However it is not only the Government's failures which are marked by its long line of defeats before the European Court of Human Rights. Lord Woolf again in conference mode some years ago, suggested that there was no need to incorporate the convention because fundamental human rights were latent in the common law and simply awaited judicial discovery. If this is so, there has been a notable absence of prospectors.
Mr Justice Sedley was a voice destined to remain in the wilderness when he observed, in an unreported 1994 case, that it was "unreal and potentially unjust" to develop English public law without reference to the European Convention.
Too often in particular areas of law judges appear to share a world vision with the executive. This may be seen starkly in the removal of political activists on undisclosed national security grounds. Lord Denning's ringing claim that in some parts of the world national security has been used to infringe individual liberty "but not in England" must have had a cracked tone even in pre-Scott days.
The Government may not regard judicial review as warmly as does the judiciary, but it shares the same conflicting perceptions of the remedy's scope. For government lawyers in the domestic courts, judicial review is merely a supervisory remedy on points of law. On the other hand those same lawyers argue in the European Court that review is a subtle domestic remedy effective to catch Human Rights Convention breaches.
Whether or not for this affinity of sentiment between the Government and the bench, the practice of review in immigration cases has changed out of all recognition in recent years. Formidable timetables are imposed by the Home Office (48 hours to secure leave in some cases) without any apparent demur by the courts. The Home Office is routinely represented in fully contested ex parte applications for leave. Most cases are conceded if leave is granted. One experienced junior commented to me ruefully that he regarded it as a mark of his success that his cases rarely came to full hearing anymore. The result is a dearth of case-law beneficial to applicants, and close Home Office control of what cases (and on what facts) are finally determined.
Ultimately judicial review itself is not to be assessed by its potential but by its results and the remedy will follow the sympathies of those who control it. I recall a refugee case some years ago when a judge leaned across the bench to demand of my counsel: "Will this take long Mr Davies, only I've a sensitive company merger application to deal with."