The prime minister has justified cutting down the opportunity for judicial review of official decisions on the ground that economic progress should be our "overriding purpose", as in times of war. Nobody likes their decisions to be challenged but, as the new master of the rolls, Lord Dyson, recently said: "there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review."
Dyson is right. The best indicator as to whether a country has the rule of law is this: Can the ordinary person challenge a decision by a public official (police, minister, planning authority and so on) with a reasonable chance of redress if the decision is unlawful? In countries under the rule of law, courts or other tribunals are hospitable to such challenges and hear them openly and fairly. Countries without the rule of law stack the odds in favour of governmental decisions which are difficult or impossible genuinely to question.
One of the beacons of Britain's modern democracy is its advanced system of judicial review of administration. It is hard to believe now that even in the 1960s, our courts were just about as executive-minded as judges in some non-democratic states, refusing to rock the boat of public policy. If parliament conferred discretionary power on an official in wide terms (such as "to act as he sees fit", or "in the public interest"), then the courts would interpret such a power as the grant of an infinite authority, with which they could not properly interfere.
Back then, in the aftermath of two world wars, it is true that there was little opportunity to hold officials accountable for their actions on the part of consumers, customers, constituents or clients. Even the architects of the welfare state from the 1940s were reluctant to give people the right to judicial review of decisions taken in the new health service, or in the area of welfare and social security. Parliament and the courts endorsed this zone of immunity around those in positions of power.
Spurred on by visionary judges such as Lord Atkin, who said that "the law should speak the same language in war as in peace", the national habit of deference changed and judicial review, among other avenues of accountability, political and legal, began to be shaped. By the 1980s our law required all decision-makers, "be he ever so high", to make decisions that were within the letter as well as purpose of the law, taken after a genuinely fair hearing, and with a result that was not arbitrary or manifestly unreasonable. Justice finally trumped convenience and a view that our public officials, however admirable, inevitably act lawfully.
As a result, challenges to decisions at all levels naturally increased, pursued not only by immigrants or trouble-makers, but by ordinary street traders unfairly refused licences to trade, policemen summarily dismissed, students unreasonably refused grants, householders unlawfully refused planning permission, or farmers whose grants were wrongly denied. In addition there were the high profile cases, such as the legally incorrect decision to withdraw a rail franchise or to sanction a nuclear power program without sufficient consultation.
It is important to note that judicial review does not involve a challenge to the merits of a decision. It is fundamental that judicial review is not the same as an appeal. The judge may not take the decision as if he or she were retaking the decision of the primary decision-maker. Judicial review involves a decision only as to whether the decision was taken outside of the law. That is why it is often said that judicial review is a constitutional right - the right of everyone to prevent an unlawful decision from taking effect.
Nor is there a free-for-all. As opposed to the procedures in most other countries, we have instituted a tightly controlled, quick and relatively cheap procedure called the application for judicial review, under which a challenge to a decision must be made "promptly", together with a careful filtering process, whereby permission must first be granted to apply for review on the ground of a realistically arguable case. As a result, only 174 of the 11,200 applications brought in 2011 made it to the substantial review stage.
We ought always strive to streamline our judicial system. However, our right of access to justice should not be lightly interfered with. Judicial review as developed by the British courts, in dialogue with our parliament, is seen the world over as one of our greatest legal contributions of recent years. In South Africa, after the fall of apartheid, their new constitution adopted precisely the British tenets of what they called "just administrative action" namely, the right to official decisions that are lawful, reasonable and fair. Many other countries, especially in the Commonwealth, have emulated that model.
Any minister who seeks to diminish the opportunity to challenge his decisions and those of his colleagues and other officials in our courts will be reversing fifty years of one of the United Kingdom's most significant legal developments. He will also be threatening a fundamental constitutional principle under which no-one should be unduly protected from the reach of the law.
Professor Sir Jeffrey Jowell KCMG QC, Director, Bingham Centre for the Rule of Law
Originally published on theguardian.com/law on 19 November 2012