Chapter 2 Guidance on answering the critical questions

The rule of law and the rule of judges

1. What is the purpose of judicial review: is it to police the lawfulness of administrative action? To right injustices to claimants?

  • First ask yourself, what can judicial review do? And of course, judges cannot serve as inspectors. They do not patrol the offices of public authorities to check whether they are acting lawfully. The first point to bear in mind is that courts only take action when a claimant brings a proceeding.
  • But they could listen to any allegation of unlawful conduct, and automatically impose sanctions on a public authority that has acted contrary to law. So secondly you should ask yourself, is it always appropriate for courts to do so? (see 2.7)
  • Should the courts ever interfere with an unlawful administrative decision where there has been no injustice to the claimant? (see Chapter 11)
  • Can there ever be unlawful administrative action that causes injustice to a claimant, which the courts should not remedy? (see Chapter 14: there is no general compensation for injustice caused by unlawful administrative action! –is that a defect in our administrative law?)
  • Finally, ask yourself if it would be good to make radical changes to the role of judges. Would it be a good idea to authorize a council of judges or retired judges to investigate any aspect of public administration that they see fit, to help to secure government according to law? (see 13.10 on ‘administrative audits’)
  • Don’t forget that judicial review is not the only way of controlling government action. Not only does Parliament have responsibility for scrutinizing the Government; there is also a wide variety of non-judicial techniques for imposing the rule of law on administration: tribunals and auditors do so, and even ombudsmen (whose decisions have no legal effect) help to promote the values of responsible government that lie behind the rule of law (see 13.13). What implications do such techniques have for the purpose of judicial review?

2. Can you explain the difference between review for error of law, and review for the improper use of discretionary power?

  • The basic idea is that:
    • on questions of what the law is, the judges impose their own view on administrative authorities, but
    • on questions of how they should use their discretionary powers, the judges defer to administrative authorities’ own views (at least, they defer to some extent –the extent can vary widely depending on the issue).
  • See 9.4 for an argument that, when a public authority other than a court has authority to make determinations of law, the courts should treat that as a discretionary power. If that argument is right, then there ought to be an underlying unity between judicial control of the use of discretionary powers, and judicial control of administrative decisions as to what the law is.

3. Can you find examples of judges explicitly basing their decisions in judicial review on the rule of law?

  • There are many examples; particularly notable are Lord Steyn’s speeches in the life prisoner cases: R v Home Secretary ex p Pierson [1998] AC 539 HL, Lord Steyn at 606-7; R v Home Secretary ex p Venables and Thomson [1997] 3 WLR 23; R v Home Secretary, ex P Hindley [2001] 1 AC 410 HL
  • Further endorsements of the rule of law:
    • National Federation of Self-employed and Small Business Ltd [1982] AC 617 (“Fleet Street Casuals”)-- see Lord Diplock at 639-640
    • R v Home Secretary ex p Cheblak [1991] 1 WLR 890, Lord Donaldson MR at 906
    • R v Horseferry Road Magistrates’ Court ex p Bennett [1994] 1 AC 42, Lord Griffiths at 62
    • R v Lord Chancellor, ex p Witham [1997] 2 All ER 779
  • And see R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60: the Divisional Court held that a decision not to pursue a criminal investigation had been unlawful because it was contrary to the rule of law; the House of Lords overturned that decision: see 7.3.1.

4. Do judges play a political role in judicial review? Should they do so?

  • What is the judges’ role in controlling public authorities? They have jurisdiction to quash decisions if they are unlawful. Can they quash decisions for being politically improper?
  • But consider judicial review for unreasonableness. Might any form of Wednesbury unreasonable conduct by a Cabinet minister simultaneously amount to politically improper conduct?
  • What do you think ‘political’ means? If a political role simply means a role in running the country, then of course the judges are right in the thick of it (though only within their specific role). Consider the number of cases in the Table of Cases in which the defendant is a Cabinet minister. 
  • If ‘political’ refers to the sort of politics that we need political parties for, then it seems that judges should stay out of it. But we can’t simply say that judges shouldn’t interfere with matters that Parliament has responsibility for, because Parliament has responsibility for more or less everything (and could, e.g., bring down a Government on the ground that ministers have acted unlawfully…).
  • There is certainly a crucial difference between what we expect of party politicians and what we expect of judges. We expect a Prime Minister to enter office with a platform of policies for government in general that have been set out in a manifesto. We expect judges to enter office with no commitment to particular government policies, and to listen to the legal arguments of each side to a dispute.
  • Can we even say that judges should not interfere if a matter is too political? Perhaps, instead, the question is whether the matter is political in a way that makes it impossible for judges to deal with it justly or effectively.
  • As you learn about the wide-ranging array of public decisions that judges control (see in particular Chapters 7 and 8), ask yourself whether there are any that need to be left to politicians rather than to judges. The key cases at the end of Chapter 7 give you a good list of cases in which the courts have been asked to interfere (and sometimes have interfered) in matters that are politically highly charged.

5. Can you think of any grounds on which a court ought to be prepared to review a decision by the Prime Minister to recommend the appointment of a particular person as a minister of Crown?

  • Would it be proper for a court to interfere on the ground that no reasonable Prime Minister would appoint that person as a minister?
  • What about matters that do not require the judges to form a view on the merits of the appointment? What if it were established that the Prime Minister had accepted a bribe in order to make the appointment?
  • In such a case of corruption, you might say that the court would not be interfering with the Prime Minister’s discretion, but would simply be preventing an abuse of power, which shouldn’t be left to stand just because it is not the judges’ job to appoint ministers. But what about this: is the court the right agency to prevent the abuse? Isn’t it the House of Commons’ job to hold the Prime Minister accountable for advice? If the House of Commons fails in that responsibility, would it be right for the court to step into the breach and declare that the appointment was unlawful?
  • Would it be proper for the Queen to dismiss a minister, on discovering that the Prime Minister had been bribed to recommend the appointment?

6. Would judicial review become unnecessary, if Parliament were better at scrutinizing the executive?

  • Are there things that the courts do well that Parliament could not do so well even if it were reformed?
  • Does it matter that the House of Commons doesn’t have time to conduct hearings? Would it be a good body to conduct hearings, if it had time?
  • Can we say generally that individuals with a complaint of unlawful action are generally better off going to court, than asking Parliament (or a committee) for a remedy? Why or why not?

Additional question:

Did Parliament give the judges power to interfere with the exercise of a statutory power? Or did the courts take it upon themselves in the development of the common law? Does the controversy make any difference to the grounds of judicial review?

  • The constitutional principles that justify judicial review were not created by Parliament (not even the principle of parliamentary sovereignty). Note, also, that the most important ground of judicial review of administrative action, due process, is itself a principle of the common law of judicial process, which was not created by statute. And note that the same grounds of judicial review that control the use of statutory powers also control the use of prerogative powers, and the use of power by non-governmental agencies that perform public functions without exercising statutory or prerogative power.
  • The control of those non-statutory powers shows that it can be right for judges to invent duties and impose them on public authorities. Is that what they are doing in controlling statutory powers? Yes, according to Byles J in Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180, who said that when a statute does not specify that a power is to be used with due process, “the justice of the common law will supply the omission of legislature” (see 4.1). As Lord Justice Sedley put it in R (Wooder) v Feggetter [2002] EWCA Civ 554 [44], ‘The process is not one of discerning implied terms but of adding necessary ones. It has been the engine of modern public law, and there is no reason to believe that its force is spent.’
  • As for whether the controversy makes any difference to the grounds of review, the two approaches show a difference of attitude toward the powers of the judges. Yet it seems that two judges could take opposite views on this controversy, and never disagree on any question concerning the grounds of judicial review.