Judicial review is grabbing the headlines again following the recent High Court decision that the calculation of the release dates of prisoners serving concurrent sentences had been unlawfully applied by the prison service for the past 30 years.
The judgment was a further blow to Home Secretary Michael Howard, coming as it did after the Fayeds' success in getting his rejection of their application for British citizenship quashed and his defeat in the Court of Human Rights at Strasbourg over the deportation of Sikh independence campaigner Karamjit Singh Chahal.
George Howarth MP, Labour's spokesman for prisons, caustically observed that, with Mr Howard having been worsted by the judges three times in one week, the ruling only added to his reputation as a “serial bungler”.
But the Home Secretary has not been short of support in the face of this onslaught. The judges are overreaching themselves, it is claimed, and are intruding into areas better left to Parliament. It is specifically in the area of judicial review that a Government anxious to roll out a strong law and order programme in the run-up to the election has accused a more interventionist judiciary of stepping into the political arena.
So, has judicial review of administrative action gone too far? Lord Woolf himself has referred to its “fast and apparently haphazard growth” (see Judicial Review of Administrative Action, Fifth Edition) and it has become commonplace to say that the number of cases has risen six-fold in the past 10 years.
The subject provokes strong views but not necessarily along party lines. Shadow Lord Chancellor Lord Irvine of Lairg has called for “judicial self-restraint”, urging judges to temper expansionist designs when scrutinising ministerial decisions.
This was ostensibly a response to comments from various judges – in particular Lord Woolf and Sir John Laws – to the effect that the courts could justifiably refuse to recognise and give effect to legislative action where it was thought to undermine the rule of law.
Lord Irvine rejects such views on the grounds that they are contrary to the established laws and constitution of the UK and smack of “judicial supremacism”. Reacting to a debate in the House of Lords on the dangers of “judicial invasion of the legislative turf” he warned the judiciary to “keep their tanks off Parliament's lawn”.
Lord Woolf denies that the judiciary is ploughing a new furrow. There is nothing in the latest judicial pronouncements, he says, that need cause parliamentarians any concern, and he insists that judicial review exists to protect Parliament by ensuring that the law is observed by everyone, including the executive.
Lord Irvine has himself conceded that his arguments against “judicial supremacism” were “not in relation to any judicial review decisions that any judge has ever made”. He has paid tribute to the high quality of judicial review which “has so often rightly held the executive to account and improved the quality of administrative decision-making”. Lord Irvine also acknowledges that his comments were confined to statements made by some judges in academic journals.
Perhaps the protagonists, concerned that this debate was beginning to generate more heat than light, have decided to cool it. Certainly, any City lawyer familiar with the hurdles to overcome in challenging the decision of a regulator in the commercial arena would be very surprised to learn that the judges were on the point of running the country.
Anyone not convinced of this might do well to refer to the judgment of the then Lord Justice Bingham in the case of R v Cambridge Health Authority, ex parte B (1995).
We know that Parliament, irrespective of the government of the day, is still on top when the man who is now the country's Lord Chief Justice says: “… the courts are not, contrary to what is sometimes believed, arbiters as to the merits of cases of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgement, then we should be straying from the sphere which, under our constitution, is accorded to us.
“We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves.”