The popular perception of the judicial process is described by David Kairys as government by law, not people, together with the understanding that law is separate from, and superior to, politics, economics, culture and the values and preferences of judges. This perception is based on particular attributes of the decision-making process itself, which Kairys suggests comprises, among other things: the judicial recognition of their subservient role in constitutional theory; their passive role in the operation of the doctrine of precedent; their subordinate role in the determination and interpretation of legislation; and the ‘quasi-scientific, objective nature of legal analysis, and technical expertise of judges and lawyers’ (The Politics of Law: A Progressive Critique (1982)). To the extent that law is generally portrayed as quasi-scientific, the operation of objective, technical and hence supposedly neutral rules, the decisions that judges make are accepted as legitimate by the public. It is necessary, therefore, to consider the nature of reasoning in general and the extent to which judges make use of such reasoning, before considering the social location of the judges. It is only on the basis of the non-existence of distinct and strictly applied principles of legal reasoning that the existence of judicial creativity and the possibility of judicial bias come into consideration.
There is a long-running controversy as to the relationship of law and logic and the actual extent to which legal decisions are the outcome of, and limited by, logical processes. At times, lawyers have sought to reject what is seen as the rigid inflexibility inherent in logical reasoning in favour of flexibility and discretion. As the American Supreme Court Judge, eminent legal writer and proponent of Legal Realism Oliver Wendell Holmes expressed it: ‘The life of the law has not been logic, it has been experience’ (The Common Law (1881)).
The implication of this position is that the law is no more than a mechanism for solving particular problems and that judges should operate in such a way as to ensure the best possible result, even if this means ignoring previously established legal rules.
At other times, however, the courts have appeared to base and justify their decisions on the working out of deterministic formal rules of law, categorised in such phrases as ‘The Law is the Law’ and ‘The Law must run its course’. The suggestion behind such expressions of the Declaratory Theory of Law is that the judge is no more than the voice of an autonomous legal system that they, through their legal training, is able to gain access to but is in no way able to influence. If, as the declaratory theory of law maintains, judges do no more than give expression to already existing legal principles and rules, then the particular views, opinions or prejudices of the judiciary are of absolutely no consequence. If such a representation were accurate, then the logical conclusion would be that judges could be replaced by a computerised expert system, which could be programmed to make decisions on the basis of a strict application of general rules. It is doubtful, however, if anyone would actually accept such a suggestion. It cannot be denied that the bulk of cases are decided on the simple application of the legal rules to the particular facts of the case with little or no consideration of the legal principles. In other cases, however, the straightforward and automatic application of a legal rule might lead to the possibility of injustice.
Hard cases are decided on the basis of judicial reaction to the immediate facts of the case. Such a situation, however, is clearly antithetical to the declaratory theory of law.
These hard cases demand a consideration of the legal principles involved in order to achieve a just result. They may therefore be decided other than on the strict application of the law as it had been previously expressed. It should be pointed out that such cases are usually the province of the higher courts and of particularly active judges within those courts. The old maxim/cliché that ‘hard cases make bad law’ should also be borne in mind. (The career of Lord Denning might be cited as an example of this procedure and its shortcomings. Reference should be made to material covered previously in Chapters 3 and 4 of this book for a more detailed consideration of the problems inherent in judicial law-making and reform.)
In order to assess this apparent tension, if not divergence, of approach to the question whether legal reasoning is logical or not, it is necessary first of all to engage, at least minimally, in a consideration of what is to be understood by reasoning generally and logical reasoning in particular.
As regards reasoning in general, there is a division between deductive and inductive reasoning. Deductive reasoning may be categorised as reasoning from the whole to the part; from the general to the particular. Deductive reasoning finds its simplest and yet most powerful expression in the Aristotelian syllogism. The syllogism takes the following form:
The power of the syllogism lies in its certainty. If the premises are true, then the conclusion cannot be false. The reason for this is that the conclusion is actually contained in the premises and amounts to no more than a restatement of those premises.
With regard to syllogisms, however, it is important to distinguish between validity of form and truth of content. It is quite possible for a syllogism to be logically valid but false. An example of this would be:
The logical form of this argument, as represented in alphabetical terms, is valid, but the conclusion is not true. The reason for this is obviously that the major premise is false: the statement that all men are pigs is simply not true.
It is also possible for a syllogism to be both true and valid yet still be based on a false premise. An example of this would be:
Once again, the logical form expressed in alphabetical terms is valid, and once again the major premise is false. On this occasion, however, the conclusion is true.
To reiterate the essential point, all that the syllogistic form of reasoning maintains is that if the premises are true then the conclusion cannot be false; in itself, it states nothing as to the truth of those premises or the truth of the conclusion derived from them. As will be considered below, much legal argument is about the truth of particular premises rather than the validity of the logical form being operated.
Deductive reasoning can take another form as follows:
Again, the conclusion is contained in the premises, but equally again, if the premises are false, the conclusion may also be false.
The second classic form of reasoning, inductive reasoning, may be described as arguing from the part to the whole; from the particular to the general. Inductive reasoning differs from deductive reasoning in two major respects:
An example of this type of reasoning would be:
If the premise is true, then the conclusion is probably true, but not 100 per cent necessarily so because the conclusion is not contained in the premise, but is a projection from it. On the basis of past experience, we can reasonably expect the sun to rise in the east tomorrow, but there is the possibility, no matter how remote it might be, that something might happen to the sun, or indeed the earth, to prevent its appearance tomorrow. The point is that we cannot predict with 100 per cent accuracy what will happen in the future just because it happened in the past. Because the inductive argument goes beyond the content of its premises, it provides the power to predict events, but it gives predictive power at the expense of certainty in its conclusion.
An alternative example of this type of inductive reasoning would be:
Now, the conclusion may be reasonable under the circumstances, but there are other possible explanations for the scene. Jane may have simply picked up the gun after someone else had shot John. We cannot actually tell who killed John, but we may reasonably suspect Jane of the crime and she would be the first person to be questioned to confirm either her guilt or innocence. The investigation of this event would use a form of reasoning equivalent to scientific reasoning. From available data, a hypothesis would be formed; in this case, that Jane killed John. Investigations would then be undertaken to test the validity of the hypothesis. Depending on the outcome of the investigation, the original hypothesis would be either accepted, rejected or refined.
A third type of reasoning is reasoning by example or analogy. If deductive reasoning involves reasoning from the whole to the part, and inductive reasoning involves reasoning from the part to the whole, then reasoning by analogy involves reasoning from part to part.
An example of this type of reasoning would be:
Or similarly:
It can be seen that the truth of the conclusion depends completely on the accuracy of the analogy. The connection between the two objects that are being compared depends on weighing up and assessing their similarities and their differences. Only some characteristics are similar, and the question is whether those are more important than the differences between the two objects. If the analogy is valid, then the conclusion may very well be equally valid, although not necessarily correct, but, if it is not valid, then the conclusion will certainly be wrong, as the above examples demonstrate.
It is now appropriate to determine whether, or to what extent, judges use logical reasoning in reaching their decisions in particular cases and to determine which forms, if any, they make use of.
Some statutory provisions and also some common law rules can be expressed in the form of a syllogism. For example, the offence of theft may be reduced into such a formulation:
This, however, represents an oversimplification of the structure of statute but, more importantly, the effect of concentrating on the logical form of the offence tends to marginalise the key issues in relation to its actual application. As has been stated previously, the great majority of cases are decided on the truth of the premises rather than the formal validity of the argument used. In other words, argument will concentrate primarily on whether A actually did the act or not and, second, on whether A appropriated the property either ‘dishonestly’ or ‘with the intention of permanently depriving’ B of it. Those are questions of fact, not logic.
The operation of the rules of precedent appears, at first sight, to involve a similar operation of deductive logic to that applied in statute law: the judge merely applies the legal principle established in the precedent to the facts in hand to determine the outcome of the case. Thus:
A closer consideration of the actual procedure involved in precedent, however, will reveal that it is not totally accurate to categorise precedent as a form of deductive reasoning.
In looking for a precedent on which to base a decision, judges are faced with a large number of cases from which to select. It is extremely unlikely that judges will find an authority that corresponds precisely to the facts of the case before them. What they have to do is to find an analogous case and use its reasoning to decide the case before them. This use of analogy to decide cases is prone to the same shortcomings as were revealed in the previous consideration of reasoning from analogy in general. The major difficulty is the need to ensure the validity of the analogy made, if the conclusion drawn is to be valid. There is, no doubt, considerable merit in the wish for similar cases to be treated similarly, but given the lack of precision that is inherent in the process of reasoning by analogy, it is not altogether certain that such a wish will be met.
A further reason why the operation of precedent cannot simply be considered as an example of deductive reasoning relates to the process through which the precedent is actually determined once an analogous case has been selected. The binding element in any precedent is the ratio decidendi of the decision. In delivering his decision, the judge does not separate the ratio of the case from other obiter comments. As has been considered previously, the ratio is a legal abstraction from the concrete facts of the case in which it appears, and in practice, it is for judges in subsequent cases to determine the ratio of any authority. The determination of the ratio and thus the precedent in a previous case may be seen as a process of inductive reasoning, in that the judge in the present case derives the general principle of the ratio from the particular facts of the previous case. This move from the particular to the general is by its nature inductive. The point to be remembered here is that, as was considered in relation to reasoning in general, the use of inductive reasoning cannot claim the certainty inherent in the use of deductive reasoning. The introduction of this increased element of uncertainty is inescapable and unconscious, but it is also appropriate to note that the determination of precedent by later courts gives the later judges scope to consciously manipulate precedents. This is achieved by the later judges formulating the ratio of a previous case in the light of their opinion as to what it should have been, rather than what it might actually have been. In other words, they have the scope to substitute their version of the ratio, even if it contradicts what the original judge thought the ratio was.
Thus, the apparent deductive certainty of the use of precedent is revealed to be based on the much less certain use of inductive reasoning and reasoning by analogy, with even the possibility of personal views of the judges playing some part in deciding cases. This latter factor introduces the possibility that judges do not in fact use any form of logical reasoning to decide their cases, but simply deliver decisions on the basis of an intuitive response to the facts of the case and the situation of the parties involved. The suggestion has been made that judges decide the outcome of the case first of all and only then seek some post hoc legal justification for their decision; and given the huge number of precedents from which they are able to choose, they have no great difficulty in finding such support as they require. The process of logical reasoning can be compared to the links in a chain, one following the other, but a more fitting metaphor for judicial reasoning would be to compare it with the legs of a chair: forced into place to support the weight of a conclusion reached a priori. Some critics have even gone so far as to deny the existence of legal reasoning altogether as a method of determining decisions, and have suggested that references to such are no more than a means of justifying the social and political decisions that judges are called upon to make.
In conclusion, however, it is not suggested that legal reasoning does not employ the use of logic, but neither can it be asserted that it is only a matter of logic. Perhaps the only conclusion that can be reached is that legal reasoning as exercised by the judiciary is an amalgam; part deductive, part inductive, part reasoning by analogy, with an added mixture of personal intuition, not to say personal prejudice.
Following on from the previous questioning of the logical nature of legal reasoning, it might be valuable to consider further the claim that legal decisions are not the outcome of a process of logical reasoning, but are in fact the products of a completely different form of communication. According to Peter Goodrich (Reading the Law (1986) at 171):
the legal art is an art of interpretation; it is concerned not with a necessary or scientific logic, but with probable arguments, with evaluative reasoning and not with absolute certainty. Rhetoric is the discipline which most explicitly studies the techniques relevant to presenting and evaluating, affirming or refuting, such probable arguments… rhetoric, here, is defined as the reading of legal texts as acts of communication, as discourse designed to influence, to persuade and to induce action.
Goodrich analysed the use of rhetoric in law, from ancient Greece until the present time, in Chapter 6 of his book. In so doing, he revealed the specific rhetorical devices that judges bring to bear in their decisions in order to persuade their audience as to the objective validity of their decisions.
The question, however, is as to who constitutes the audience that the judiciary addresses. In the case of summings-up to juries, the answer is obvious, but there is still an audience being addressed when the judge delivers a judgment in any case. That audience, it is suggested, is the community at large, but with the community not as an active participant in the legal process, but as a passive body that merely has to be persuaded of the inherent and unquestionable validity of the judge’s decision in any particular case.
As Goodrich points out (1986 at 188):
The language of the legal decision strives for the appearance of objectivity and the exclusion of dialogue in favour of monologue. Its principal aim and function is that of achieving an image of incontestable authority and of correct legal meanings. Such a task is, essentially, a rhetorical one: the monologue is the language-usage of authority, it precludes dialogue or any questioning of the meanings given, and it closes legal discourse by privileging the voice of the judicial author as the supreme arbiter of meanings.
Rather than being presented as a particular individual’s opinion, the legal text is typically expressed as in the language of objectivity. The use of such terms as ‘thus’, ‘because’, ‘for the reason that’ or ‘in spite of’ indicates the voice of necessity, not of choice. When this is combined with the use of terms such as ‘therefore’ or ‘consequently’, the outcome is to re-inforce the impression that the judge is merely engaged in a working out and presentation of the formal operation of the objective system that is law. In this fashion, the language of apparently objective, and logically determined, legal categories is revealed to be a mere rhetorical device marshalled by judges to provide their particular decisions with the justification of pseudo-objectivity. This process is complemented by the use of axioms, unquestioned and apparently unquestionable self-evident truths, to which the judiciary frequently have recourse in order to validate, without justifying, their own assumptions and presumptions. One should be on one’s guard when one reads judges referring to principles that are ‘so fundamental that they need not be debated’, or where conclusions follow ‘as a matter of course’ on the basis of ‘well-settled principle’. The question is whether such claims merely appeal to uncorroborated precedents and unsubstantiated prejudices.
One further aspect of the rhetorical nature of the judicial presentation directly relates to the inherently political nature of judicial decision-making. It is almost a commonplace in the most politically sensitive cases that the judges involved will ritually intone the mantra to the effect that ‘it is fortunate that the court does not have to consider the political aspects of this case…’, before going on to make what cannot but be a political decision. On the contrary, as this book maintains, all judicial decisions are political in that they reflect a disposition as to where power should be located in any particular situation.
Judgments, and judicial presentations to juries, therefore are not merely statements of law; they are equally, if not more fundamentally, exercises in rhetoric. To read a judgment in this way is to see it in a new revelatory light that shows the justificatory, if not manipulative, use of language and linguistic devices that are an essential element of the judgment. It has to be pointed out, however, that the nature and use of rhetoric has changed over time. The difference between the operation of rhetoric in the ancient world and its use by the judiciary today is that, whereas in the ancient world it was used as a means of persuading an audience to reach a particular decision, its contemporary role is that of justifying the decision that the judge has taken. The judge speaks; the audience listens and is persuaded: the role of the audience as a participant has been removed and it now merely exists as the passive receiver of the court’s decision.
In R (Smeaton) v Secretary of State for Health ([2002] EWHC 610, paras 46 and 47), which considered the legality of the morning-after contraceptive pill, Munby J stated:
I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great and, to some, transcending importance. But I must emphasise that, so far as the court is concerned, this case has nothing to do with either morality or religious belief. The issue which I have to decide is not whether the sale and use of the morning-after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable. What I have to determine is whether it may constitute an offence under the 1861 Act.
Cases such as this, and others in the field of medicine (one thinks of cases such as Airedale NHS Trust v Bland [1993] AC 789 and Re A (Conjoined Twins: Medical Treatment) [2001] Fam 147), raise moral, religious and ethical issues on which, as Lord Browne-Wilkinson pointed out in Bland at pp 879E, 880A, ‘society is not all of one mind’ and on which indeed ‘society as a whole is substantially divided’. Our society, including the most thoughtful and concerned sections of our society, are deeply troubled by, and indeed deeply divided over, such issues. These are topics on which men and women of different faiths, or indeed of no faith at all, may and do hold, passionately and with the utmost sincerity, starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them. The days are past when the business of the judges was the enforcement of morals or religious belief (emphases added).
With the greatest of respect to Munby J, what he seeks to avoid is exactly what he is forced to do in making his ‘legal’ decision.
It is worth noting that in the most overtly political case to be heard in recent times, Miller v Secretary of State for Exiting the European Union, the judgment of the High Court felt it necessary to make the following statement at the outset:
It is agreed on all sides that this is a justiciable question which it is for the courts to decide. It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law (emphasis added). The Supreme Court subsequently emphasised the ‘non- political’ nature of its later decision.
The effect of the Human Rights Act 1998 (HRA) on the interface between the judiciary and the executive has been considered previously at 2.5, but that Act merely heightened the potential for conflict in a relationship that was already subject to some tension as a consequence of the operation of judicial review. If the interface between judiciary and executive tends now to be most sharply defined in human rights actions, the previous and continued role of judicial review in that relationship should not be underestimated.
The growth in applications for judicial review prior to the HRA was truly startling, as individuals and the judiciary recognised its potential utility as a means of challenging administrative decisions. The records show that in 1980 there were only 525 applications for judicial review; in 1996, 4,586; in 1997, 4,636 such applications; and by 1998, applications had passed the 5,000 mark and were continuing to rise. Analysis of the statistics from 2004 to 2011 may be found on two websites: www.theguardian.com/news/datablog/2012/nov/19/judicial-review-statistics and http://fullfact.org/factchecks/judicial_reviews-28613.
As the analysis shows, the real push in the rise of judicial review cases is in the field of immigration and asylum: for example, in 2013, of the 15,000 applications for judicial review, 13,000 related to immigration and asylum matters. The year 2014, however, saw only 4,062 claims, reflecting the transfer of immigration cases to the Upper Tribunal for Immigration and Asylum Chamber in November 2013.
Thus at the outset, it should be noted that although this section focuses on those instances where the judiciary have decided against the exercise of executive power in a particular way, it has to be emphasised that the vast majority of judicial review cases are decided in favour of the executive. This may be significant when the views of Professor Griffith are examined at 13.7.1 below.
The remedies open to anyone challenging the decisions or actions of administrative institutions or public authorities can be divided into private or public law remedies.
There are three private law remedies:
This is a definitive statement, by the High Court or County Court, of what the law is in a particular area. The procedure may be used by an individual or body to clarify a particularly contentious situation. It is a common remedy in private law, but it also has an important part to play in regard to individuals’ relations with administrative institutions. This can be seen, for example, in Congreve v Home Office (1976), where the Court of Appeal stated that it would be unlawful for the Home Office to revoke annual television licences after only eight months because they had been bought in anticipation of an announced price rise but before the expiry of existing licences.
Declarations, however, cannot be enforced either directly or indirectly through the contempt of court procedure. Public authorities are, as a matter of course, expected to abide by them.
Usually, an injunction seeks to restrain a person from breaking the law; alternatively, however, a mandatory injunction may instruct someone to undo what they have previously done, or alternatively to stop doing what they are doing. Both types of injunction may be sought against a public authority. See Attorney General v Fulham Corp (1921), in which a local authority was ordered to stop running a laundry service where it only had the power to establish laundries for people to wash their own clothes.
Damages cannot be awarded on their own in relation to administrative misconduct, but may be claimed in addition where one of the other remedies considered above is sought, as, for example, in Cooper v Wandsworth Board of Works (1863). In this case, a builder had put up a building without informing the Board of Works as he was required to do. When the Board demolished the building, he nonetheless recovered damages against them on the basis that the Board had exceeded its powers by not allowing him to defend or explain his actions.
In order to seek one of these private law remedies, an individual merely had to issue a writ against a public authority in their own name. They did not require the approval of the court.
The prerogative orders are so called because they were originally the means whereby sovereigns controlled the operation of their officials. As a consequence, the prerogative orders cannot be used against the Crown, but they can be used against individual ministers of state and, since R v Secretary of State for the Home Department ex p Fire Brigades Union (1995), considered at 13.6.1 below, it is clear that ministers cannot avoid judicial review by hiding behind the cloak of prerogative powers. The prerogative orders are as follows.
A quashing order, formerly known as certiorari, is the mechanism by means of which decisions of inferior courts, tribunals and other authoritative bodies are brought before the High Court to have their validity examined. Where any such decision is found to be invalid, it may be set aside. An example of this can be seen in Ridge v Baldwin (1964). Here, the plaintiff had been dismissed from his position as Chief Constable without having had the opportunity to present any case for his defence. The House of Lords held that the committee that had taken the decision had acted in breach of the requirements of natural justice and granted a declaration that his dismissal was null and void.
A prohibiting order, formerly known as prohibition, is similar to certiorari in that it relates to invalid acts of public authorities, but it is different to the extent that it is pre-emptive and prescriptive in regard to any such activity and operates to prevent the authority from taking invalid decisions in the first place. An example of the use of the order arose in R v Telford Justices ex p Badhan (1991). In this case, an order was issued to stop committal proceedings in relation to an alleged rape that had not been reported until some 14 years after the alleged incident. The delay meant that the defendant would have been unable to prepare a proper defence against the charge.
A mandatory order, formerly known as mandamus, may be seen as the obverse of a prohibiting order, in that it is an order issued by the High Court instructing an inferior court or some other public authority to carry out a duty laid on them. Such an order is frequently issued in conjunction with an order of certiorari, to the effect that a public body is held to be using its powers improperly and is instructed to use them in a proper fashion. In R v Poplar BC (Nos 1 and 2) (1922), the court ordered the borough council to pay over money due to the county council and to levy a rate to raise the money if necessary. Failure to comply with the order led to the imprisonment of some of the borough councillors.
In O’Reilly v Mackman (1982), however, the House of Lords decided that issues relating to public rights could only be enforced by means of the judicial review procedure, and that it would be an abuse of process for an applicant to seek a declaration by writ in relation to an alleged breach of a public duty or responsibility by a public authority. In deciding the case in this way, the House of Lords did much to demarcate and emphasise the role of judicial review as the method of challenging public authorities in their performance of their powers and duties in public law.
Judicial review allows people with a sufficient interest in a decision or action by a public body to ask a judge to review the lawfulness of:
However, it is not an appeal on the merits of a decision. The grounds of application can be considered under two heads: procedural ultra vires and substantive ultra vires.
Procedural ultra vires, as its name suggests, relates to the failure of a person or body, provided with specific authority, to follow the procedure established for using that power. It also covers instances where a body exercising a judicial function fails to follow the requirements of natural justice by acting as prosecutor and judge in the same case or not permitting the accused person to make representations to the panel deciding the case.
Substantive ultra vires occurs where someone does something that is not actually authorised by the enabling legislation. In Associated Provincial Picture House v Wednes-bury Corp (1947), Lord Greene MR established the possibility of challenging discretionary decisions on the basis of unreasonableness.
Lord Greene’s approach was endorsed and refined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1984), in which he set out the three recognised grounds for judicial review, namely:
Lord Diplock, however, introduced the possibility of a much more wide-ranging reason for challenging administrative decisions: namely, the doctrine of proportionality. Behind this doctrine is the requirement that there should be a reasonable relation between a decision and its objectives. It requires the achievement of particular ends by means that are not more oppressive than they need be to attain those ends. The potentially innovative aspect of this doctrine is the extent to which it looks to the substance of the decisions rather than simply focusing on the way in which they are reached.
Lord Diplock’s listing of proportionality within the grounds for judicial review was controversial, if not at the very least arguably mistaken. Proportionality, however, is a key principle within the jurisdiction of the ECtHR, and is used frequently to assess the validity of state action which interferes with individual rights protected under the Convention. Consequently, as the HRA has incorporated the European Convention into UK law, proportionality will be a part of UK jurisprudence and legal practice, at least in cases that fall within the scope of the HRA. Although HRA cases and judicial review are different and distinct procedures, nonetheless, it is surely a mere matter of time before the doctrine of proportionality is applied by the judges in judicial review cases unrelated to the Convention.
Indeed, such an approach was supported by Lord Slynn in R v Secretary of State for the Environment, Transport and the Regions ex p Holding and Barnes (2001), in which he stated ([2001] 2 All ER 929 at 975):
The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between that principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. But the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community Acts but also when they are dealing with Acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing.
However, as Lord Reed pointed out in the Supreme Court case R (on the application of Lumsdon) v Legal Services Board [2015] UKSC 41, ‘Although there is some common ground, the principle of proportionality in EU law is neither expressed nor applied in the same way as the principle of proportionality under the European Convention on Human Rights.’
In Frank Cowl v Plymouth City Council (2001), the Court of Appeal held that judicial review was not necessarily the proper action in the face of alternatives. The claimant had sought to use judicial review as a means of challenging the council’s decision to close a residential care home for the elderly, even though the council had said it was willing to consider his situation as part of a statutory complaints procedure. According to Lord Woolf:
The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process. The disadvantages of doing so are limited. If subsequently it becomes apparent that there is a legal issue to be resolved, that can thereafter be examined by the courts which may be considerably assisted by the findings made by the complaints panel… This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. If they cannot resolve the whole of the dispute by the use of the complaints procedure they should resolve the dispute so far as is practicable without involving litigation.
As will be considered in Chapter 15, one of the reasons for the setting up of extensive systems of administrative tribunals was precisely the wish to curb the power of the judges. It was felt that judges, and indeed the common law itself, tended to be more supportive of individual rights and freedoms as opposed to collective notions of welfare pursued by post-war governments, and that they would not administer such policies sympathetically. The judges, however, asserted their ultimate control over such tribunals generally through the use of judicial review. There have been various attempts by parliamentary drafters to exclude the judiciary from certain areas by wording provisions in such a way as to deny the possibility of judicial review. These attempts, however, have mainly proved to be in vain and have been rendered ineffective by the refusal of the courts to recognise their declared effect. Examples are:
There is a variety of possible wordings for these clauses. For example, the legislation might provide that ‘the minister’s [or the tribunal’s] decision shall be final’, or alternatively it might attempt to emphasise the point by stating that the decision in question ‘shall be final and conclusive’, or it might even provide that ‘it shall be final, conclusive and shall not be questioned in any legal proceedings whatsoever’. Unfortunately for the drafter of the legislation and the minister or tribunal in question, all three formulations are equally likely to be ineffective. The courts have tended to interpret such phrases in a narrow way, so as to recognise the exclusion of an appeal procedure but to introduce the possibility of judicial review, as distinct from appeal. The classic case on this point is R v Medical Appeal Tribunal ex p Gilmore (1957), in which Lord Denning stated that ‘The word “final”… does not mean without recourse to certiorari.’ This, however, raised the point of provisions which expressly sought to exclude certiorari.
In South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union (1980), the Privy Council decided that a Malaysian statute was sufficiently detailed in its wording to effectively exclude certiorari for an error of law on the face of the record. The Privy Council pointed out, however, that the exclusion could not be effective to prevent judicial review where the institution in question had acted ultra vires or in breach of natural justice.
The fury of the judiciary against the government’s statutory proposals found its fullest expression in respect of the Asylum and Immigration (Treatment of Claimants etc) Bill. The Bill, which was designed to speed up asylum and immigration procedures by curtailing the appeal structure, introduced the most wide-ranging of ouster clauses to the effect that no court shall have any supervisory or other jurisdiction in relation to the Asylum and Immigration Tribunal. In particular, the original cl 11 of the Bill stated that the courts could not question the decisions of the tribunal even in the event of:
As was stated at the time, such a proposal was the ‘mother and father’ of all ouster clauses. The judiciary were extremely vocal in their opposition to cl 11, which they saw, and publicly represented, as an attack on the rule of law in its refusal to allow access to the ordinary courts. When it became apparent that the Bill was not going to pass through the House of Lords, the government withdrew the original clause and the subsequent Asylum and Immigration (Treatment of Claimants etc) Act 2004 allowed appeals on a point of law.
Where legislation has provided for a limited time period within which parties have to apply for judicial review, then applications outside of the period will not be successful. In Smith v East Elloe Rural DC (1956), the House of Lords, although only by a three-to-two majority, recognised the effectiveness of a six-week limitation clause in the Acquisition of Land (Authorisation Procedure) Act 1946. Although that case was subject to criticism in Anisminic Ltd v Foreign Compensation Commission (1969), it was explained and followed in R v Secretary of State for the Environment ex p Ostler (1976).
In response to the Franks Committee’s recommendation that judicial review should not be subject to exclusion, s 14(1) of the Tribunals and Inquiries Act 1971 was enacted to that end. Unfortunately, it applies only to pre-1958 legislation.
In November 2012 the Prime Minister, David Cameron, announced that his government intended to ‘get a grip’ on people forcing unnecessary delays to government policy by ‘cracking down’ on the’massive growth industry’ of judicial review.
Following a consultation exercise in 2013, the Justice Ministry announced proposals to reduce the number of judicial review cases, including the following:
In September 2013 the government’s widely imputed antagonism towards judicial review was further evidenced when the Ministry of Justice issued a consultation document entitled Judicial Review: Proposals For Further Reform. The consultation exercise sought views on proposals in the following areas:
Such proposals met much opposition, including that of Lord Neuberger, President of the Supreme Court, who spoke out against the attack on judicial review in a speech, in October 2013, in which he expressed the view that:
The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive-central government, local government or other public bodies. We must look at any proposed changes with particular care… bearing in mind that the proposed changes come from the very body which is at the receiving end of judicial reviews.
In spite of such criticism, the government carried on with many substantive reforms. The most significant changes were contained in Part 3, Courts and tribunals, and Part 4, Judicial review, of the Criminal Justice and Courts Act 2015 as cited above.
Among the financial measures in Part 4 of the Act are the following:
In October 2015 the Bingham Centre, JUSTICE and the Public Law Project jointly published an extremely informative introduction to the judicial review reform provisions in Part 4 of the Criminal Justice and Courts Act 2015.The document was praised by no less an authority than Lord Woolf who, in a foreword to it, wrote: ‘It deals with Part 4 of the Act in an exemplary manner. It sets out in clear terms what should be the approach. Its authors are to be congratulated for what they have achieved.’ The full title of the document is Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4.
In the same month the Public Law Project also published a wider examination of judicial review under the title The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences, written by Varda Bondy, Lucinda Platt and Maurice Sunkin.
The authors preface their summary with the following cautionary comment:
There are a number of widely held and influential assumptions about the costs and misuse of JR. First, that the past growth in the use of JR has been largely driven by claimants abusing the system, either deliberately or otherwise. Second, that the effect of JR on public administration is largely negative because JR makes it more difficult for public bodies to deliver public services efficiently. Third, that JR litigation tends to be an expensive and time consuming detour concerned with technical matters of procedure that rarely alters decisions of public bodies. These claims have been challenged for their lack of empirical basis and this study provides additional evidence which shows them to be at best misleading and at worst false.
This comprehensive and excellent explanatory guide to the procedures and practice relating to judicial review process was published by HM Court and Tribunals service and is available on its website. The guide brings together all relevant statutory provisions, rules of procedure, practice directions, and case law on procedural aspects of judicial review. Much of the guide is aimed at helping litigants in person, but it is also designed to ensure consistency and efficiency in the Administrative Court by tackling bad practices, including late filing of bundles, authorities and skeleton arguments. The guidance states that sanctions may be applied to parties if they fail to comply. As is stated in its preface the guide:
… is designed to make it easier for parties to conduct judicial reviews in the Administrative Court, by drawing together into one place the relevant statutory provisions, rules of procedure, practice directions, and case law on procedural aspects of judicial review. It provides general guidance as to how litigation in the Administrative Court should be conducted in order to achieve the overriding objective of dealing with cases justly and at proportionate cost.
Law is an inherently and inescapably political process. Even assertions as to the substantive autonomy of law (see Chapters 1, 3 and 4) merely disguise the fact that, in making legal decisions, judges decide where the weight of public approval is to be placed and which forms of behaviour are to be sanctioned (see, for example R v Brown (1993), where the House of Lords criminalised the sexual activities of consenting sadomasochists, arguably without fully comprehending some aspects of what was going on).
There is, however, an increasingly apparent tendency for contemporary judges to become actively, directly and openly engaged in more overtly political activity. The 1955 Kilmuir rules, named after the Lord Chancellor who introduced them, were designed to control the instances when the judiciary could express opinion in the media. The rules were abrogated in 1987 by Lord Mackay and, since then, the judiciary have been more forthcoming in expressing their views, not just on matters strictly related to their judicial functions but also on wider political matters.
As has been stated, the HRA merely heightened the potential for conflict between the judges and the executive and Parliament, but the relationship was already subject to some tension as a consequence of the operation of judicial review, as can be seen in a number of cases.
In M v Home Office (1993), the House of Lords decided that the court has jurisdiction in judicial review proceedings to grant interim and final injunctions against officers of the Crown, and to make a finding of contempt of court against a government department or a minister of the Crown in either his personal or his official capacity.
M v Home Office is of signal importance in establishing the powers of the courts in relation to the executive. It is also interesting to note that in delivering the leading speech, Lord Woolf quoted extensively from, and clearly supported, Dicey’s view of the rule of law as involving the subjection of all, including state officials, to the ordinary law of the land (see Chapter 2).
In November 1994, the government suffered two damaging blows from the judiciary. In R v Secretary of State for Foreign Affairs ex p World Development Movement Ltd (1995), the Queen’s Bench Divisional Court held that the Secretary of State had acted beyond his powers in granting aid to the Malaysian government in relation to the Pergau Dam project. The financial assistance was given, not for the promotion of development per se, as authorised by s 1 of the Overseas Development and Co-operation Act 1980, but in order to facilitate certain arms sales.
In R v Secretary of State for the Home Department ex p Fire Brigades Union (1995), the Court of Appeal held that the Home Secretary had committed an abuse of power in implementing a scheme designed to cut the level of payments made to the subjects of criminal injuries. The court held that he was under an obligation, under the CJA 1988, to put the previous non-statutory scheme on a statutory basis. It was not open for the Secretary of State to use his prerogative powers to introduce a completely new tariff scheme contrary to the intention of Parliament as expressed in the CJA 1988. The decision of the Court of Appeal was confirmed by a three-to-two majority in the House of Lords in April 1995, the majority holding that the Secretary of State had exceeded or abused powers granted to him by Parliament. It is of interest to note that in his minority judgment Lord Keith warned that to dismiss the Home Secretary’s appeal would be:
an unwarrantable intrusion into the political field and a usurpation of the function of Parliament.
Even Lord Chancellors have not escaped the unwanted control of judicial review, and in March 1997 John Witham successfully argued that the Lord Chancellor had exceeded his statutory powers in removing exemptions from court fees for those in receipt of state income support (R v Lord Chancellor ex p Witham (1997)).
Given its centrality in the operation of the criminal justice system and immigration, it is hardly surprising that the Home Department is subject to more claims for judicial review than any other ministry, nor is it surprising that some of them go against it.
In Alvi v Secretary of State for the Home Department (2012), the Supreme Court ruled that the Home Secretary could not introduce substantive immigration requirements through policy decisions, guidance or instructions, rather than in the body of the immigration rules themselves. The list of skilled occupations used to assess immigration requests was held not to be part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament as was required under s 3(2) of the Immigration Act 1971.
In April 2013, the Government announced it would introduce a residence test for civil legal aid funding under s 9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act, (LASPO) 2012. The intention was that individuals not lawfully resident in the UK would not be eligible for legal aid. The charitable organisation Public Law Project (PLP) successfully challenged the residence test on two grounds: (i) the secondary legislation was ultra vires; and, (ii) the test was unjustifiably discriminatory.
Ultimately, applying the ordinary principles of statutory interpretation, the Supreme Court held that the draft order was ultra vires. While s 9(2)(b) provides the power to vary or omit services, the relevant parts of the draft order did not look to vary or omit services; rather, they were intended to reduce the class of individuals who were entitled to receive those services by reference to a personal characteristics or circumstance unrelated to the services (i.e. length of residency).
This case related to the UK government’s obligations under the European Air Quality Directive (2008/50/EC), which required Member states to reduce the levels of nitrogen dioxide in outdoor air. The legal activist group ClientEarth raised an action against the state claiming that London and several other British cities had failed to meet EU standards on nitrogen dioxide (NO 2) levels since 2010. The Supreme Court held in favour of ClientEarth and granted a declaration that there has been a breach of Art 13 of the Air Quality Directive The fact that the breach has been conceded was not considered a sufficient reason to decline to grant the declaration. In addition, as Lord Carnwarth stated: ‘The new government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue.’
Subsequently in December 2015, in purported compliance with the order of the Supreme Court and the provisions of the Directive, the Department for the Environment, Food and Rural Affairs (DEFRA) published the government’s 2015 Air Quality Plan (AQP) which purportedly addressed the need to reduce nitrogen dioxide emissions. Once again ClientEarth challenged the government, this time on lawfulness of DEFRA’s plan, seeking a declaration that the plan, like its predecessor, failed to comply with Art 23(1) of the Directive and Reg 26(2) of the Air Quality Standards Regulations 2010, and this time seeking for an order quashing the plan. In ClientEarth (No.2) v Secretary of State for the Environment, Food and Rural Affairs (2016) the High Court decided that it would be appropriate to make a declaration that the 2015 AQP failed to comply with Art 23(1) of the Directive and Reg 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan.
In reaching that decision Mr Justice Garnham also held that:
Following the decision, the government said it would not appeal it and agreed to discuss with ClientEarth a new timetable for more realistic pollution modelling and the steps needed to bring pollution levels down to the legally required levels. At Prime Minister’s questions, Theresa May said:
We now recognise that DEFRA] has to look at the judgment made by the courts and we now have to look again at the proposals we will bring forward . Nobody in this house doubts the importance of the issue of air quality.
(emphasis added).
Those outside parliament, such as ClientEarth, might have grounds to question that assertion.
In April 2013, when the Welfare Reform Act 2012 came into force, it cut the amount of housing benefit payment made to people renting social housing who were deemed to have ‘spare bedrooms’: the reduction applicable was 14 per cent for one bedroom and 25 per cent for those deemed to have two or more spare bedrooms. Actions against the new regime were raised and made their way through the legal system to the Supreme Court, which announced its decision as to the legality of the impositions on 9 November 2016. R (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 concerned a number of claimants, each of whom alleged that the bedroom tax amounted to unlawful discrimination, contrary to their Art 14 and Art 8 ECHR rights and the state’s public sector duty not to discriminate against particular individuals on the basis of their disability.
In the Carmichael case, the claimant lived with her husband in a two bedroom flat. She was severely disabled and her husband was her full time carer. She needed a special bed with an electronic mattress and there was not enough space for her husband to have a separate bed in the same room, so he slept in the second bedroom. Their rent was reduced by 14 per cent under the ‘under occupancy charge’. However, the Supreme Court held that Mrs Carmichael had suffered from disability discrimination in the reduction of their housing benefit payment.
A second successful linked case (Rutherford) related to two full-time carers of their disabled grandson. It was accepted that they needed a ‘spare bedroom’ to allow a further carer to stay overnight. However, a number of other linked cases were rejected including the case of a woman, A, who lived in a three-bedroom property which had been adapted by police to protect her from a violent and abusive ex-partner under what is known as the Sanctuary Scheme. The majority of the Supreme Court found that, while A, was entitled to receive protection she was not entitled to an exemption from the bedroom tax, even if the additional accommodation was provided under the Scheme. Lady Hale, with whom Lord Carnwath agreed, delivered a dissenting judgment, finding that the lack of exemption amounted to both unlawful discrimination and a breach of the public sector equality duty, the reason being that the government had not taken into account the disproportionate impact that the bedroom tax would have on survivors of domestic violence.
Coincidently, the decisions of the Supreme Court were delivered only two days after the United Nations Committee on Rights of Persons with Disabilities issued a highly critical report on the way in which recent reforms had impacted on people with disabilities in the UK. The finding of the committee was that there was ‘reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State party.’
It can be seen from the foregoing that judicial review provided the judiciary with the means for addressing the potential for abuse that followed on from the growth of discretionary power in the hands of the modern state, particularly if it was operated on the basis of the doctrine of proportionality. Alongside the growth in the number of applications, there were also indications that at least some of the higher judiciary saw it as part of their function to exercise such control over the executive. For example, the former Master of the Rolls and former Lord Chief Justice, Lord Bingham, was quoted in The Observer newspaper of 9 May 1993 as saying that:
Slowly, the constitutional balance is tilting towards the judiciary. The courts have reacted to the increase in powers claimed by the government by being more active themselves.
Judicial review is a delicate exercise and by necessity draws the judiciary into the political arena, using the word ‘political’ in its widest, non-party sense. That the judges were aware of this is evident from the words of Lord Woolf in the same article. As he recognised:
Judicial review is all about balance: between the rights of the individual and his need to be treated fairly, and the rights of government at local and national level to do what it has been elected to do. There is a very sensitive and political decision to be made.
However, another former Law Lord, Lord Browne-Wilkinson, observed on a BBC radio programme, admittedly before his elevation to the House of Lords, that a great void was apparent in the political system, deriving from the fact that no government had a true popular majority and yet all governments were able to carry Parliament in support of anything they wanted. He went on to express the view that Parliament was not a place where it was easy to get accountability for abuse or misuse of powers. According to Lord Browne-Wilkinson, while judicial review could not overcome the will of Parliament, judges had a special role because democracy was defective. He then asked a rhetorical question as to who else but the judges could ensure that executive action is taken in accordance with law, and not abused by increasingly polarised political stances.
Such thinking is also evident in an article by Mr Justice Stephen Sedley (as he was then) in the May 1995 edition of the London Review of Books, in which he asserted that, after decades of passivity, there is a new ‘culture of judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process’, and that the last three decades of the twentieth century may have seen the UK constitution being refashioned by judges ‘with sufficient popular support to mute political opposition’.
As has been seen at 2.5 above, the introduction of the HRA greatly increased judicial power in relation to the other two branches of the constitution.
Initially the judges were reluctant to use their new powers, especially the Court of Appeal and the House of Lords, although the courts below them, and notably Collins J in the SIAC, adopted a much more robust approach.
This initial position was set by Lord Irvine in his inaugural Human Rights Lecture at the University of Durham:
It is all about balance. The balance between intense judicial scrutiny and reasonable deference to elected decision-makers is a delicate one to strike. But the judiciary have struck it well: and I welcome that. Whilst scrutiny is undoubtedly an important aid to better governance, there are areas in which decisions are best taken by the decision-makers entrusted by Parliament to make them. This may be for reasons of democratic accountability, expertise or complexity.
The former Lord Chancellor may well have been of the view that the judges had got it right, but his views did not sound in harmony with those of his ex-colleague, the former Home Secretary, David Blunkett, who was a consistent source of attack on the judiciary. Perhaps his most severe attack came after Collins J’s decision in R (on the Application of Q) v Secretary of State for the Home Department (2003), which declared unlawful his power under s 55 of the Nationality, Immigration and Asylum Act 2002 to refuse to provide assistance to those who had not immediately declared their intention to claim asylum when they arrived in the UK. In the press, the then Home Secretary was quoted as saying:
Frankly, I am fed up with having to deal with a situation where Parliament debates issues and judges then overturn them. We were aware of the circumstances, we did mean what we said and, on behalf of the British people, we are going to implement it.
Of even more concern were the reports that the then Prime Minister was ‘prepared for a showdown with the judiciary to stop the courts thwarting government’s attempts to curb the record flow of asylum seekers into Britain’, and that he was looking into the possibility of enacting legislation to limit the role of judges in the interpretation of international human rights obligations and reassert the primacy of Parliament. There were even reports that the Prime Minister was considering withdrawing completely from the ECHR, rather than merely issuing derogations where it was thought necessary.
Given such pressure, it is perhaps not surprising that when the Court of Appeal heard the Q case, while it supported Collins J’s decision, it went out of its way to provide the Home Secretary with advice on how to make the Act, and the procedures under it, compatible with ECHR rights.
The fact that the judges increasingly see it as incumbent upon them to use judicial review and the HRA as the means of questioning and controlling what they see as the abuse of executive power does, at the very least, raise very serious questions in relation to their suitability for such a role. These doubts can be set out in terms of:
This refers to the question whether the judges are sufficiently competent to participate in deciding the substantive issues that they have been invited to consider under the guise of judicial review, and may be entitled to consider under the HRA. Judges are experts in law; they are not experts in the various and highly specialised areas of policy that by definition tend to be involved in judicial review cases. They may disagree with particular decisions, but it has to be at least doubted that they are qualified to take such policy decisions. A classic example of this difficulty was the ‘fares’ fair’ cases (Bromley London BC v GLC (1983) and later, R v London Transport Executive ex p GLC (1983)), in which the courts got involved in deciding issues relating to transport policy for London on the pretext that they were judicially defining the meaning of particular words in a statute. The apparently technocratic, and hence neutral, application of rules of interpretation simply serves to disguise a political procedure and, in these cases, the policy issue concerned was certainly beyond the scope of the judges to determine. In Bellinger v Bellinger (2003), the House of Lords, although obviously sympathetic to the case, admitted their incompetence as regards deciding issues relating to the rights of transsexuals. For that reason, they issued a declaration of incompatibility under the HRA 1998 and thus passed the matter to Parliament for review and appropriate reform.
This refers to the wider point that the separation of powers applies equally to the judiciary as it does to the executive. In interfering with substantive decisions and involving themselves in political matters, albeit on the pretence of merely deciding points of law, the judiciary may be seen to be exceeding their constitutional powers. It has to be remembered that judges are unelected and unaccountable.
This refers to the possibility of individual, and indeed corporate, bias within the judiciary, as will be considered at 13.7.1 below.
The foregoing has indicated that the relationship between the state and the courts may, on occasion, involve a measure of tension, with the courts attempting to rein in the activities of the state. The relationship between the judiciary and the executive is well summed up in the words of Lord Justice Farquharson, again taken from an Observer article:
We have to be very careful: the executive is elected. We have a role in the Constitution but, if we go too far, there will be a reaction. The Constitution only works if the different organs trust each other. If the judges start getting too frisky, there would be retaliation, renewed attempts to curb the judiciary.
Although no longer in force, the Kilmuir rules did have a valid point to make:
the overriding consideration… is the importance of keeping the judiciary in this country isolated from the controversies of the day. So long as a judge keeps silent, his reputation for wisdom and impartiality remains unassailable; but every utterance which he makes in public… must necessarily bring him within the focus of criticism.
When considering the role which the judiciary play in the process of applying the law, or indeed the process already adverted to in Chapter 4, whereby they actually make the law, criticism is usually levelled at the particular race, class and gender position of the majority of the judges. It is an objective and well-documented fact that the majority of judges are ‘white, middle-class, middle-aged to elderly men’, but the question that has to be considered is whether this necessarily leads to the conclusion that judges reach inherently biased decisions. It is always possible, indeed the newspapers make it relatively easy, to provide anecdotal evidence that apparently confirms either the bias or the lack of social awareness of the judiciary, but the fundamental question remains as to whether these cases are exceptional or whether they represent the norm.
Why should judges’ class/race/gender placement make them less objective arbiters of the law? It is worth considering the fact that an unsupported general assertion as to the inherently partial approach of the judiciary is itself partial. Simon Lee, not totally fatuously, has highlighted the logical flaw in what he refers to as the ‘Tony Benn thesis’ (Benn, the former left-wing Labour Party Member of Parliament who created history by being the first hereditary peer to renounce his peerage in order to remain in the House of Commons). Just because judges are old, white, rich, upper middle class, educated at public school and Oxbridge does not mean that they all necessarily think the same way; after all, Benn was a product of the same social circumstances. There is, of course, the point that people from that particular background generally tend to be conservative in outlook, and the apparent validity of Lee’s argument is clearly the product of logic-chopping that reverses the accepted relationship and uses the exception as the rule, rather than seeing the exception as proving/testing the rule. Nevertheless, Lee’s point remains true: that proof of judicial bias is needed.
As previous sections of this book have pointed out, if law were completely beyond the scope of judges to manipulate to their own ends, then the race, class and gender placement of individual judges would be immaterial, as they would not be in any position to influence the operation of the law. As was demonstrated in Chapters 3 and 4, however, the way in which the doctrines that set the limits within which the judiciary operate are by no means as rigid and restrictive as they might at first appear. It was seen that, although judges are supposed merely to apply rather than create law, they possess a large measure of discretion in determining which laws to apply, what those laws mean, and how they should be applied. In the light of this potential capacity to create law, it is essential to ensure that the judiciary satisfactorily represent society at large in relation to which they have so much power, and to ensure further that they do not merely represent the views and attitudes of a self-perpetuating elite.
A Nuffield Foundation-funded report produced in November 1999 by Professor Hazel Genn in conjunction with the National Centre for Social Research, entitled Paths to Justice, revealed a truly remarkable lack of general confidence in the judiciary. The research surveyed a random selection of 4,125 people, from which total 1,248 people who had had experience of legal problems were selected for more detailed interview, with a smaller group of 48 being extensively interviewed. The results suggest that two out of three people think that judges are out of touch with ordinary people’s lives, but, more worryingly, only 53 per cent thought that they would get a fair hearing if they ever went to court. Disappointingly, at the launch of the report, Lord Woolf claimed that this ‘misconception’ was due to ‘irresponsible media reporting’ and stated that:
It behoves the media to learn from this and recognise the dangers posed to confidence in the judicial system.
Surely, it more behoves the judiciary and the Justice Ministry to do more to redress this negative perception than simply blame the media for focusing on silly judge stories of which, unfortunately, there are still too many.
One of the findings of the report was that judges could improve their image by getting rid of their wigs and gowns. Perish the thought: there are standards and distinctions to be maintained. Thus, in Practice Direction (Court Dress) (No 3) (1998), the Lord High Chancellor, Lord Irvine of Lairg, provided:
Queen’s Counsel wear a short wig and silk (or stuff) gown over a court coat; junior counsel wear a short wig and stuff gown with bands; solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black stuff gown, but no wig (emphasis added).
The issue of wigs resurfaced in March 2006 when once again a proposal was put forward to consider getting rid of them. Somewhat surprisingly and counter-intuitively, some supported wigs as a means of benefiting the justice system by protecting the anonymity of counsel and providing suitable gravitas to the less experienced members of the barrister’s profession.
In July 2008 the Lord Chief Justice issued a Practice Direction which introduced the wearing of a new civil robe in civil and family law cases together with the announcement that wigs will no longer be worn in such courts. The reforms, which took effect from 1 October 2008, do not apply in criminal cases. Justices of the Supreme Court do not wear wigs or gowns when hearing cases.
The treatment of some aspects of potential bias within the judiciary has already been dealt with at 12.2.3 above, but this section addresses a more amorphous form of prejudice, and therefore one that is correspondingly more difficult to recognise or deal with. Given the central position of judges in the operation of law and the legal system, particularly with regard to the growth in judicial review and their new role in relation to giving effect to the HRA, the question these reports raise is whether the social placement of the judiciary leads to any perceptible shortfall in the provision of justice. The pre-eminent critic of the way in which the judiciary permit their shared background, attitudes and prejudices to influence their understanding and statement of the law is Professor JAG Griffith. According to Griffith, bias can occur at two levels:
Personal bias occurs where individual judges permit their own personal prejudices to influence their judgment and thus the effective application of the law. It is relatively easy to cite cases where judges give expression to their own attitudes and in so doing exhibit their own prejudices. As examples of this process, two cases can be cited which consider the rule of natural justice, that a person should not be both the accuser and judge in the same case. In Hannam v Bradford Corp (1970), the court held that it was contrary to natural justice for three school governors to sit as members of a local authority education disciplinary committee, charged with deciding whether or not to uphold a previous decision of the governors to dismiss a teacher. This was so even though the three governors had not been present at the meeting where it was decided to dismiss the teacher. On the other hand, in Ward v Bradford Corp (1971), the Court of Appeal refused to interfere with a decision by governors of a teacher training college to confirm the expulsion of a student, although they had instituted the disciplinary proceedings and three members of the governors sat on the original disciplinary committee. What possible explanation can there be for this discrepancy? The only tenable explanation is to be found in the latter court’s disapproval of the plaintiff’s behaviour in that case. The truly reprehensible judgment of Lord Denning concludes that the student lost nothing, as she was not a fit person to teach children in any case. Can such a conclusion be justified on purely legal grounds or is it based on individual morality? Lord Denning did his best to buttress his judgment with spurious legal reasoning, but it could be suggested that, in so doing, he merely brought the process of legal reasoning into disrepute and revealed its fallaciousness.
Courts have also been notoriously unsympathetic to victims of rape and have been guilty of making the most obtuse of sexist comments in relation to such victims. Nor can it be claimed that depreciatory racist remarks have been totally lacking in court cases.
Such cases of bias are serious and reprehensible, but the very fact that the prejudice they demonstrate appears as no more than the outcome of particular judges, who are simply out of touch with current standards of morality or acceptable behaviour, suggests that it might be eradicated by the Lord Chancellor exercising stricter control over such mavericks and appointing more appropriate judges in the first place. Professor Griffith, however, suggests that there is a further type of bias that is actually beyond such relatively easy control.
Corporate bias involves the assertion that the judges as a body decide certain types of cases in a biased way. This accusation of corporate bias is much more serious than that of personal bias, for the reason that it asserts that the problem of bias is systematic rather than merely limited to particular maverick judges. As a consequence, if such a claim is justified, it has to be concluded that the problem is not susceptible to treatment at the level of the individual judge, but requires a complete alteration of the whole judicial system. Griffith claims that, as a consequence of their shared educational experience, their shared training and practical experience at the Bar and their shared social situation as members of the Establishment, judges have developed a common outlook. He maintains that they share homogeneous values, attitudes and beliefs as to how the law should operate and be administered. He further suggests that this shared outlook is inherently conservative, if not Conservative in a party-political sense.
Griffith’s argument is that the highest judges in the judicial hierarchy are frequently called upon to decide cases on the basis of a determination of what constitutes the public interest and that, in making that determination, they express their own corporate values, which are in turn a product of their position in society as part of the ruling Establishment. Griffith maintains that judges can be seen to operate in such a way as to maintain the status quo and resist challenges to the established authority. Underlying this argument is the implication that the celebrated independence of the judiciary is, in fact, a myth and that the courts will tend to decide cases in such a way as to buttress the position of the state, especially if it is under the control of a Conservative government.
In an attempt to substantiate his claims, Griffith examines cases relating to trade union law, personal rights, property rights and matters of national security, where he claims to find judges consistently acting to support the interests of the state over the rights of the individual. Some of the concrete examples he cites are the withdrawal of trade union rights from GCHQ at Cheltenham (Council of Civil Service Unions v Minister for Civil Service (1984)); the banning of publishing any extracts from the Spycatcher book (AG v Guardian Newspapers Ltd (1987)); and the treatment of suspected terrorists.
There certainly have been some overtly right-wing decisions taken by the courts, and the history of trade union cases is replete with them even at the highest level. The greater strength of Griffith’s argument, however, would appear to be in the way that the courts have understood and expressed what is to be meant by ‘public interest’ in such a way as to reflect conservative, but not necessarily illiberal, values. It is surely only from that perspective that the higher judiciary’s antagonistic response to some of the electorally driven policy decisions in relation to the legal system by both Conservative and New Labour administrations can be reconciled.
As would be expected, Griffith, and other academics associated with the left, have expressed their reservations about the extent to which the HRA will hand power to an unelected, unaccountable, inherently conservative and unreformed body, as they claim the judiciary is.
A notable, if somewhat complacent, response to Griffith’s book was provided by Lord Devlin, who pointed out that, in most cases and on most issues, there tended to be plurality rather than unanimity of opinion and decision among judges. He also claimed that it would be just as possible for a more conservatively minded person than Griffith to go through the casebooks to provide a list of examples where the courts had operated in an over-liberal manner. Lord Devlin also adopted a different explanation of the judiciary’s perceived reluctance to abandon the status quo. For him, any conservatism on the part of judges was to be seen as a product of age rather than class. In conclusion, he asserted that even if the judiciary were biased, their bias was well known and allowances could be made for it.
The issue of the way in which the criminal appeal procedure dealt with suspected terrorist cases is of particular relevance in the light of the Runciman Commission Report. General dissatisfaction with the trials and appeals involving suspected terrorists such as the Maguire Seven, the Birmingham Six, the Guildford Four, the Tottenham Three, Stefan Kiszko and Judith Ward helped to give rise to the widespread impression that the UK criminal justice system, and in particular the British appeal system, needed to be considered for reform.
In the light of the fact that the appeal system did not seem to be willing to consider the possibility of the accused’s innocence once they had been convicted, the Runciman Commission’s recommendation that a Criminal Case Review Authority be established, independent of the Home Office, was widely welcomed and resulted in the establishment of the CCRC in the Criminal Appeal Act 1995 (see above, 9.9). The question still remains, however, whether those earlier cases reflect an inherently and inescapably conservative judiciary, or were they simply unfortunate instances of more general errors of the system, which the implementation of the CCRC can overcome? And perhaps more importantly, will the Court of Appeal give a fair hearing to the cases referred to it by the CCRC?
It is apparent from the statistics produced by what was then the Department for Constitutional Affairs (DCA), cited previously, that senior judges were still being appointed from the same limited social and educational elite as they always have been. This gives rise to the suspicion, if not the reality, that the decisions that this elite make merely represent values and interests of a limited and privileged segment of society rather than society as a whole. Even if the accusations levelled by Professor Griffith are inaccurate, it is surely still necessary to remove even the possibility of those accusations.
It is not a little ironic that, in spite of the potential shortcomings that arise from the social composition of the current judicial body, there seems to be a distinct alteration in attitudes to the judiciary among those of a politically left-leaning persuasion. Following the introduction of the Human Rights Act and especially the decisions of the House of Lords in A v Secretary of State for the Home Department (2004) and A v Secretary of State for the Home Department (2005), many on the left now apparently see the courts as the bulwark of civilised society, against which beats the persistent tide of authoritarian legislation: the judges are now celebrated as the custodians of the rule of law, protecting the general populace from the depredations of the all-encompassing state. Thus, from previously being seen from this perspective, as reactionary, the courts are now seen as the appropriate defenders of generally accepted, and generally to be defended, liberal values. It is equally ironic that the same critics also hold the previously ineffable House of Lords in the same light as a safeguard of liberties of the ordinary person.
In support of this odd transition may be cited a series of BBC radio programmes delivered, at the end of the summer 2009, by the liberal barrister and Labour peer Helena Kennedy. In the second programme she examined the shifting history of attacks on judicial independence, admitting that in the 1970s and 1980s, it was she and a generation of liberal lawyers who attacked the judiciary for being too right wing and out of touch. Now, however, right-wing critics have taken up their language but with the twist that they now attack the judiciary for being too liberal and out of touch.
In the third programme she focused on the way in which restraining orders to protect the victims of domestic violence, once again championed by liberal lawyers like her, have in recent years been broadened in scope and application, in such a way as to operate as mechanisms for political control.
One would not have to be a confirmed cynic to recognise the dangers in such an approach. Those wishing to make radical changes in social order should not rely on the judges for support, nor place too much power in their hands. That is surely Griffith’s underlying thesis?
During the summer of 2003, following the war in Iraq, the government established an inquiry to investigate the reasons why a British civil servant working for the Ministry of Defence (Dr David Kelly) apparently killed himself. The inquiry chairman was Lord Hutton, a Law Lord, and his task was set by the government as one to ‘urgently conduct an investigation into the circumstances surrounding the death of Dr Kelly’. This prompts consideration of the judicial inquiry, and its place in the English legal system.
An inquiry is different from a tribunal, another quasi-judicial body with which it is sometimes compared. A tribunal is a permanent body whereas an inquiry is set up on an ad hoc basis to deal with one particular problematic issue. Tribunals are empowered to make decisions that affect the parties to the issue, whereas inquiries can only publish their ‘findings’ and make recommendations that might be implemented by the government.
A ‘statutory inquiry’ is one that is established because an Act permits or requires it to be set up in certain circumstances. For example, under s 78 of the Town and Country Planning 1990 Act, someone who seeks planning permission but is refused by their local planning authority has the right to appeal to the Secretary of State. In order to help decide the case, the Secretary can ask for a local public inquiry to be held.
A ‘non-statutory inquiry’ is one that has been set up by the government in order to examine matters of substantial public interest such as disasters or scandals. Senior members of the judiciary usually, but not necessarily, chair these.
There are, importantly, two sorts of judicial inquiry. First, there are those that are established under the Tribunals of Inquiry (Evidence) Act 1921. Such inquiries are similar in their formality and rules of procedure to court cases. The chair can summon witnesses under threat that they will commit an offence if they do not turn up to give evidence, and the chair can demand that documents be made available to the hearing. This type of inquiry can be established only upon a resolution of both houses of Parliament. The Bloody Sunday Inquiry into the killing of 13 Catholic civilians by British paratroopers in Derry in 1972 and chaired by Lord Saville of Newdigate was established under the 1921 Act. Similarly, the inquiry into the Dunblane shootings, in which many children at a primary school in Scotland were shot and killed in 1996, was also established under the 1921 Act.
Secondly, there are those judicial inquiries in which a judge is simply appointed by the government to chair the process but without the full powers of running it as a court case. For example Lord Denning investigated aspects of the Profumo affair, a scandal in 1963 involving the Secretary of State for War at the time. Lord Scarman conducted the inquiry into the Brixton riots of 1981; Lord Justice Taylor examined the safety of sports grounds following the Hillsborough stadium disaster in 1991; and Lord Justice Scott inquired into the arms-for-Iraq affair in 1994. Such investigations, however, are not necessarily conducted by a judge, as may be seen from the example of the Franks Report on the conduct of the Falklands War in 1983.
However, judges have often been selected to chair inquiries into matters of public importance because they are expert in conducting fair and methodical hearings, and are generally regarded as wise people who are well versed in using rules of evidence justly to evaluate competing arguments. The Hutton Inquiry into the death of Dr Kelly was of this second sort.
Lord Hutton conducted his inquiry in a scrupulously forensic manner and, while it was ongoing, the press was particularly effusive in its praise of him. It was only with the release of the final report, which totally exonerated all members of the New Labour government and its entourage, and castigated the BBC, that suggestions emerged that the Law Lord actually might not have been the best-equipped person to undertake such a politically sensitive inquiry, at least from the point of view of those who were opposed to the actions of the government. For example, an article in The Guardian newspaper of 29 January 2004 stated that:
Lord Hutton’s report caused little surprise yesterday among lawyers who know the newly retired Law Lord. Most describe him as an establishment man and not one to rock the boat. When he set out on his task, they predicted that he would keep his remit as narrow as possible. That prediction has been proved right.
Anthony Scrivener QC, a former chairman of the Bar, said:
You get a conventional, conservative with a small ‘c’ judge. You ask whether the Prime Minister and other members of the government have been lying through their teeth. As a conventional judge he applies the criminal standard of proof. You give him no right to get documents so he only sees the documents you give him. The result is entirely predictable.
One senior QC said: ‘I think the report reflects his establishment background. He is a trusting man as far as officialdom is concerned.’
Another, who knows him personally and has appeared before him, said: ‘There are judges in the House of Lords who are liberal and progressive and might possibly shake the establishment branches, but not Brian Hutton.’
Whether the Hutton Report provides evidence to support Professor Griffith’s thesis as to the inherently establishment nature of the judiciary as a body is a moot point, but it certainly caused Lord Woolf to question the wisdom of using members of the senior judiciary in such situations. In a New Statesman journal interview in February 2004, the Lord Chief Justice was quoted as disapproving of the present system. He said, ‘In America they are not keen on judges doing this sort of thing’, and that inquiries conducted by non-judges ‘might be a better way of doing it’.
It could, once again, only be the unwonted, not to say hostile, publicity that led the Lord Chief Justice to such a conclusion: a conclusion that might suggest that judges should not be seen to be meddling in the political arena, but might also carry the implication that what is wrong is not so much the interference in itself, as the being seen to be interfering.
This Act repealed the Tribunals of Inquiry (Evidence) Act 1921. Under the new Act:
In a trenchant assessment of the Inquiries Act 2005, the British and Irish Rights Watch, an independent human rights organisation, expressed the view that:
The Inquiries Act has brought about a fundamental shift in the manner in which the actions of government and public bodies can be subjected to scrutiny in the United Kingdom. The powers of independent chairs to control inquiries has been usurped and those powers have been placed in the hands of government Ministers. The Minister:
Parliament’s role has been reduced to that of the passive recipient of information about inquiries, whereas under the 1921 Act reports of public inquiries were made to Parliament. Now, not only is there no guarantee that any inquiry will be public, but inquiry reports will go to the Minister.
The Minister’s role is particularly troubling where the actions of that Minister or those of his or her department, or those of the government, are in question. In effect, the state will be investigating itself. In our view, the Inquiries Act is at odds with the United Nations’ updated set of principles for the protection and promotion of human rights through action to combat impunity.
Where Article 2 of the European Convention on Human Rights (which protects the right to life) is engaged, the Inquiries Act is at variance with the United Nations’ Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. Indeed, we doubt that the Inquiries Act can deliver an effective investigation in compliance with Article 2. The Minister’s powers to interfere in every important aspect of an inquiry robs it of any independence. Even if a Minister were to refrain from exercising those powers that are discretionary, s/he still has absolute power over whether there should be an inquiry at all and over its terms of reference. There is no scope for victims to be involved in or even consulted about the process.
In support of their view, the organisation cited the views of Lord Saville, who chaired one of the most complex public inquiries in UK legal history, the Bloody Sunday Inquiry, who publicly expressed grave reservations about the Act. As they claimed, in a letter to Baroness Ashton at the Department of Constitutional Affairs, dated 26 January 2005, he stated his opinion that:
I take the view that this provision makes a very serious inroad into the independence of any inquiry and is likely to damage or destroy public confidence in the inquiry and its findings, especially in cases where the conduct of the authorities may be in question.
He added that such ministerial interference with a judge’s ability to act impartially and independently of government would be unjustifiable. He further stated that neither he nor his fellow judges on the Bloody Sunday Inquiry would be prepared to be appointed as a member of an inquiry that was subject to a provision of that kind.
The Inquiries Act came under critical attention in July 2008 when the United Nations Human Rights Committee issued its concluding observations on the UK’s periodic report under the UN Covenant on Civil and Political Rights. As it stated:
The Committee remains concerned that, a considerable time after murders (including of human rights defenders) in Northern Ireland have occurred, several inquiries into these murders have still not been established or concluded, and that those responsible for these deaths have not yet been prosecuted. Even where inquiries have been established, the Committee is concerned that instead of being under the control of an independent judge, several of these inquiries are conducted under the Inquiries Act 2005 which allows the Government minister who is responsible for establishing an inquiry to control important aspects of that inquiry (Art 6, emphasis added).
In March 2014, a House of Lords select committee published the results of its review of the law and practice relating to public inquiries, The Inquiries Act 2005: post-legislative scrutiny.
Its main recommendations were that:
Deductive reasoning is reasoning from the whole to the part; from the general to the particular. The syllogism is a form of deductive reasoning. Inductive reasoning is reasoning from the part to the whole; from the particular to the general. Reasoning by analogy is reasoning from part to part.
Laws can be presented in the form of syllogisms but do not actually focus on questions of deductive reasoning. The doctrine of judicial precedent appears at first sight to involve deductive reasoning, but is in fact based on the much less certain use of inductive reasoning and reasoning by analogy.
Under the constitution of the UK, and within the doctrine of the separation of powers, judges and the executive have distinct but interrelated roles.
Judicial review remedies are the prerogative remedies of quashing orders, mandatory orders and prohibiting orders, together with the private law remedies of declaration, injunction and damages. Private law remedies cannot be used in relation to public law complaints.
Increased judicial activity in relation to state programmes raises questions about the competence and authority of judges to act, as well as raising doubts as to their political views.
Judges have a capacity to make law – the question is, do they exercise this power in a biased way?
Bias can take two forms: personal and corporate.
Accusations of corporate bias suggest that, as a group, judges represent the interest of the status quo and decide certain political cases in line with that interest. However, more recently there has been a reliance on the judiciary as the protectors of human rights.
Why should judges decide matters of social policy at all? The political rights, Articles 8–12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates are about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them?
Baldwin, J, ‘The social composition of magistrates’ (1976) 16 British J of Criminology 171
Blom-Cooper, L, ‘Bias: malfunction in judicial decision-making’ [2009] PL 199
Bondy, V, Platt, L and Sunkin, M, The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences, 2015, London: The Public Project
Browne-Wilkinson, N (Sir), ‘The independence of the judiciary in the 1980s’ [1988] PL 4
Clayton, R, ‘Decision-making in the Supreme Court: new approaches and new opportunities’ [2009] PL 682
Crawford, L, ‘Race awareness training and the judges’ (1994) Counsel 11
Griffith, JAG, The Politics of the Judiciary, 5th edn, 1997, London: Fontana
Hailsham (Lord), ‘The office of Lord Chancellor and the separation of powers’ (1989) 8 Civil Justice Quarterly 308 Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4,
Bingham Centre for the Rule of Law, JUSTICE and the Public Law Project, London, October 2015
Lee, S, Judging Judges, 1988, London: Faber & Faber
MacCormick, N, Legal Rules and Legal Reasoning, 1978, Oxford: Clarendon
Mackay (Lord), The Administration of Justice, 1994, London: Sweet & Maxwell
Malleson, K, The New Judiciary: The Effect of Expansion and Activism, 1999, Aldershot: Ashgate
McLachlin, B, ‘The role of judges in modern Commonwealth society’ [1994] LQR 260
Murdoch, S, ‘Judges use discretion over discharges’ (2009) 940 EG 131
Pannick, D, Judges, 1987, Oxford: OUP
Parker, H et al, Unmasking the Magistrates, 1989, Milton Keynes: OUP
Royal Commission on Criminal Justice, Runciman Report, Cm 2263, 1995, London: HMSO
Rutherford, A, ‘Judicial training and autonomy’ (1999) 149 NLJ 1120
Skordaki, E, Judicial Appointments, Law Society Research Study No 5, 1991, London: HMSO
Smith, R, ‘Judging the judges’ (2009) 159 NLJ 1154
Stevens, R, The Independence of the Judiciary, 1993, Oxford: OUP
Stevens, R, The English Judge: Their Role in the Changing Constitution, 2002, Oxford: Hart Publishing
Of general, as well as specific subject, interest, are the following books, written by two of the most erudite and literary of recent judges.
Bingham, T, The Business of Judging: Selected Essays and Speeches: 1985–1999 and Lives of the Law: Selected Essays and Speeches: 2000–2010, 2011, Oxford: OUP
Sedley S, Ashes and Sparks: Essays On Law and Justice, 2011, Cambridge: CUP
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