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The Judicial Review and Courts Bill 2021 is a significant intervention by the Executive to reform judicial powers. As the Bill passes through Parliament, it is important to consider the historical context of the independence of the judiciary and contemporary debates about judicial discretion and independence. Dark forebodings about the future of judicial review have been assuaged by the government - at least, for the moment. There are, however, ominous signs that more reforms might yet come, and these might encroach on judicial independence or place limits on the availability of judicial review [1]. The starting point for this paper, is a short excursus, a prologue, that sets out the historical path of judicial independence. This is followed by a brief overview of contemporary judicial review and the doctrine of judicial self-restraint. Finally, the conclusions of the recent Independent Review into administrative law and an assessment of the Judicial Review and Courts Bill are considered.

The elaboration of modern judicial review in the United Kingdom
Prologue

Contemporary events are best considered in their historical context. In England, judicial review has roots within the myriad pages of legal history and court manuscripts. Early medieval history [2]  is difficult terrain, often shrouded in mystique, symbolism, and in any instances inadequate accounts [3]. The early origins of judicial review are an example. There was no single moment or event when the creation of judicial review and the independence of the judiciary was settled beyond doubt. Rather, judicial review emerged through a pragmatic process. However, Royal power pervaded all aspects of governing, adjudicating and law making. The one partial exception was local justice and the authority of the local Barons . Conflicts between royal power and local autonomy were frequent, not least over taxes, wealth, and lands. At times Baronial local authority and wealth seemed to override centralised royal power. The coronation ceremony, the moment when Royal power was enthroned and sanctified, defined the apex of supreme authority, a spectacle, shrouded in mystery and heavily religious. Religious rites, such as the blessing of oils were markedly significant. The oath of allegiance and the religious anointing was symbolic of God’s authority, intrinsic to royal power. Legal and administrative formalities completed this combination of authority and power, were, then, and remain important to this day. Witnesses to the royal seal and the parchments of proof provided judicial testimony of the acquisition of royal power. The coronation signified and formally united, executive, judicial and administrative powers, a fusion of royal authority and Divine rights. Yet doubts existed as to the reach of royal power, even its continuance. Royal power, however, possessed a winning hand through subservience, allegiance, and patronage.

The fusion of powers endured for many centuries; the separation of the different functions of the state was incremental and not inevitable, it ultimately required a revolutionary moment when a King lost his head, but soon after a redesigned monarchy was restored under Parliamentary power. The remnants of fused powers remain. The judicial elements have been preserved by the ceremonial as well as the functions of the state. The Exchequer Court, the basis of audit, eventually became independent through the office of Comptroller and Auditor General, today an Officer of Parliament. Parliament itself retained its judicial status as the High Court of Parliament; witnesses are summoned to give evidence to select committees and are granted immunity from legal suit. Clerks and officials dress in the costumes and wigs of judicial office. Parliamentary proceedings are officially recorded, like a court record; the Bill of Rights 1690 preserves the immunity of such parliamentary proceedings from judicial adjudication in any court of law. Parliament has contempt of court powers. Strong symbols of Royal power are also retained through the state opening of Parliament, the Queen’s Speech setting out government legislative proposals, the royal assent to legislation, and the appointment of the Privy Council. Judicial appointments are held in the name of the Monarch.

Judicial power was recalibrated under Parliament’s ultimate sovereignty, judicially accepted and honoured. By the late 17th century basic principles of judicial review (adopted through remedies offered by the Divisional Court of the High Court) developed and, in contrast to many civil jurisdictions, ordinary courts, as opposed to special courts, were competent to adjudicate on the legality of acts done by the executive and its officials. Indeed superior courts could exercise a supervisory role over inferior courts and tribunals, within their jurisdiction. The law was neither codified nor precise. It was full of technicalities and distinctions that reflected the intricacies of English administration and the vicissitudes of the political life of the nation. Judicial power was integral to government and governing under the King brought advice from lawyers into the heart of government with little or no separation of powers. The professionalisation of the English common law judges, mainly qualified Barristers, sharply contrasted with the lay character of the magistracy and the developing jury system. Judicial office was monopolised by the membership of the Inns of Court, ensuring a practitioner base for judicial decision-making.

Judicial independence, itself was hard won. Bates’s case [5] and the Case of Ship-money [6] favoured the King, reflecting a largely uninterrupted and continuous judicial approval of Executive power, including the royal prerogative, and the exercise of the personal discretion of the Monarch. Royal governing with the judges was habit forming. Little might have changed, but for the influence of Sir Edward Coke (1552-1634) Chief Justice of the Common Pleas (1606) and later Chief Justice of the King’s Bench in 1613. Coke adopted the line of reasoning that government in all its elements should only exercise power according to law. This marked the triumph of the common law entailing a self-assertive judicial power, but this was not guaranteed or inevitable. Two cases in 1607 Ladd’s Case [7] and Fuller’s Case [8], the judges assert their authority and jurisdiction over other inferior courts or tribunals. In 1610 in Chauncy’s case [9] judicial power rejected any use of the King’s powers of intervention in particular cases. Perhaps the hallmarks of that triumph were, the Case of Prohibitions (1608)[10] that denied the King’s authority to hear cases in person and in the Case of Proclamations (1610)[11], which denied the King’s authority to create new or novel proclamations. Attempts by the King to limit the common law jurisdictions were resisted as were any influence attempted extrajudicially. Thereafter judicial power developed, often having to differentiate between protections afforded to the individual and scrutiny over the powers of public authorities [12]. Such discretionary powers have always proved challenging where matters of legality and expediency maybe contradictory, and setting the balance of public interest and rights is hard to adjudicate. The Act of Settlement, 1701, granted tenure to the judges. They were, no longer removable at the whim of Royal power, but only, by an address of both Houses of Parliament and because of good behaviour[13].  Five years later the Act of Settlement 1706 protected judicial salaries, remarked upon, by Blackstone[14] as a considerable achievement.

Contemporary Judicial Review

The contours of judicial power could be said to be drawn by the end of the eighteenth century. Judicial review remains largely self-made through the application of judicial discretion, manifest in several epoch-making cases[15] .The predominant approach, historically and now, is one of judicial self-restraint. This was and is an operating presumption that government acts within its powers and obeys its own laws. Dicey’s scepticism[16]  about the need for administrative law left a long legacy of delay, particularly evident in the 1950s. It served to inhibit any rapid growth or radicalism in judicial review, reinforced by enormous deference to state power, perhaps a by-product of two world wars and the aftermath of the expansion of state powers and the redrawing of the boundaries between private capital and state ownership[17] .

A new beginning was marked by the introduction of publicly funded legal aid in 1965, and the influence of the civil rights movement in the United States that heralded a new era for judicial activism. In part, judicial creativity, was a response to the introduction of new legislative frameworks: the Race Relations Acts 1965 and 1976, on race discrimination; and liberalisation of the laws on obscenity and pornography by the Obscene Publications Act 1964 and pornography. Abortion law was reformed in 1967 and the rights of gay men to consent to sex in private, came under the Sexual Offences Act 1967. There were many other transformative legislative interventions. Industrial relations and arbitration were influenced by reform of tribunals and inquiries and the development of an ombudsman system in 1967 are examples. The hall mark of “good administration” was established as a norm, rather than an expectation. The Equality Act 1967 was passed which set the benchmark for equal rights between men and women, though much more remained to be done. Much of the legislation was general in scope, leaving areas requiring judicial gap-filling as well as being subject to, complex interpretation and adjudication. Keeping pace with legislative changes judicial attitudes changed, albeit within the limits of self-restraint, encapsulated in the rather earlier traditions set out in the 1948 Wednesbury Case[18]. This case set a test of reasonableness for public bodies and contained two tests for judicial review. The first is the test of rationality meaning that public decision-makers must act in a reasonable and professional manner. The second is a test of “last resort” for judicial intervention- this encapsulates the doctrine of self-restraint. Interpreting Wednesbury became a legal science of its own. A plethora of cases followed; Ridge v Baldwin[19] in 1964 on rules of natural justice, Padfield[20]  in 1969 on setting a more intensive test of reasonableness and Anisminic, also in 1969, on holding a restrictive approach to ouster clauses in statutes that purported to exclude judicial review. This marked a high point in judicial self–confidence emulating many overseas jurisdictions where courts could address “unbridled government” or executive authority. The UK by joining the then Common Market in 1972, marked a decisive constitutional moment for the courts with access to the EU Court of Justice, the final arbiter of Community disputes. Undoubtedly, conflicts between EU law and UK law had to be resolved in favour of the former, even if the latter was an Act of the UK Parliament[21]. This also marked a sizable shift in UK judicial standing and influence[22] .

The GCHQ[23] decision in 1985 allowed review of prerogative powers, but refused trade unions the right to overturn the government’s powers to disallow trade union membership at Cheltenham, the UK’s premier centre for intelligence gathering. The decision simultaneously accepted that national security considerations would prevail over trade union membership.

Increasingly, the courts were asked to rule on sensitive issues of policy making, even when protected by “ouster” clauses. The Anisminic decision (1969) signalled judicial preparedness to avoid the courts being excluded. In 2014 the campaign group Privacy International challenged the legality of the UK security services using bulk hacking techniques to access the mobile phones and computers of individual people. The ouster clause was first challenged in the Court of Appeal and then in the Supreme Court, which held, that section 67(8) of RIPA did not oust the supervisory jurisdiction of the High Court[24]. In essence upholding the reasoning of Ansiminic.

Given the strength of judicial self-restraint and pre-eminent influence over judicial discretion, the government makes some startling current claims that there is “judicial overreach”. Their main cause celebre is the two Supreme Court decisions in Miller 1 and II. This has fed into an emerging political narrative that judicial review had been overextended and even that judges were too willing to review the merits of decisions including on policy, and somehow the “reasoning of decision-makers had been replaced, in essence with that of the courts”. The Conservative Party, soon after Miller II[25] gained an 80-seat majority at the General Election held at the end of 2019. In the Conservative Party manifesto (2019), a promise “to update the Human Rights Act and Administrative Law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. The underlying tone and message was that “while the rights of individuals needed protection…. and ensuring that judicial review was not abused to conduct politics by another means or to create needless delays”. The government set up two independent reviews, one into judicial review which has been published and the other into human rights, which is eagerly awaited over the Autumn of 2021.

[1] See The Law Society Gazette ( 26th July 2021)

[2] J.E.A Jollife, The Constitutional History of Medieval England, Adam and Charles Black, London, 1949)

[3] J.W.F Allison, The English Historical Constitution Cambridge: Cambridge University Press,2007)

[4] John P. Dawson, A History ofLay Judges,  Harvard UniversityPress, Cambridge Mass. 1960 pps. 116-177.

[5]  Case of Impositions (1606) 2 ST Tr 371 ( Bates Case)

[6]  Case of Ship Money  (1637) 3ST Tr 825.

[7] Ladd’s Case see: D.Lindsay Keir, The Constitutional History of Modern Britain 1485-1937 second edition London; Adam and Charles Black 9/198 citing Gardiner, History of England volume ii p. 39.

[8] Fuller’s Case see: Keir, op cit.,

[9] Chauncey’s Case see: Keirop cit.,

[10] Case of Prohibitions  (1607) 12 Co Rep 74.

[11] Case of Proclamations (1611) Co Rep 74

[12] Public opinion was often fickle- Daniel J. Kornsteing, Kill all the lawyers? Shakespeare’s Legal Opinion Princeton: Princeton University Press, 1994 traces the legal disputes that found their way into Shakespeare’s plays.

[13] Also see: Appellate Jurisdiction Act 1876 and the Supreme Court ofJudicature ( Consolidation) Act 1925. Sir Jonah Barrington, a High Court judgein 1930 in the Admiralty Court has been theonly judge dismissed after beingfound guilty of embezzlement. Lower court judges are arguably not protected inthe same way as the senior courts, see Terrell v Secretary of State for theColonies [1953] 2 QB 482. Also see: the Constitutional Reform Act 2005 onjudicial discipline. See: HC Deb ( 25th May 1830) Vol. 24 cc.1075-1083.

[14] William Blackstone (1723-80) Commentaries on the Laws of England ,1765-1769. See D. Lemmings,” The independence of the judiciary” in P.Birks,(ed.,) The Life of the Law:Proceedings the Tenth British Legal History Conference Oxford 1991 (London;Hambledon, Press, 1993) pp 125.149.

[15] Errington v minister of Health [1935] 1 K.B. 249, Local Government Board v Arlidge [1915] AC 120. Nakuda Ali v Jayarthne [1951] AC66.,  Franklin and others v Minister of Town and Country Planning [1948]AC 87,  Cooper v Wandsworth Board of Works (1863) 14 CB (NS), 180.

[16] A.V Dicey, “ The development of administrative law in England”(1915) 31 LQR 148. A.V Dicey, (1835- 1922) English Jurist and Vinerian Professor of the law at Oxford (1882-1909).

[17] Lord Hewart, The NewDespotism (London: Ernst Benn, 1929).

[18] Associated Provincial PictureHouses v Wednesbury Corporation [1948] 1 KB 223.

[19] Ridge v Baldwin [1964] AC40

[20] Padfield V Minister of Agriculture, Fisheries and Food [1968] UKHL 1, [1968] AC 997.

[21] Factortame litigation Case C- 213/89 [1990] ECR 2433.

[22] See the 1972 European Communities Act and the jurisdiction of the Court of Justice of the European Community, in Luxembourg . The UK was  also a signature to the European Conventionof Human Rights with individual petition to the Strasbourg Court of Human Rights.

[23] Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1985] AC 374.

[24] R (Privacy International ) vInvestigatory Powers and Tribunals and others [2019] UKSC 22.

[25] R (Miller)v The Prime Minister and others [2019] UKSC 41 ( herein after Miller 2)

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