Judicial Review: "Keep out of politics" ... but can the judges do so?

HM The Queen at the Supreme Court

Mr. Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January - the start of the Hilary Law Term.   His appointment is notable in that he is the first judge since Lord Radcliffe to be appointed directly from the Bar to the highest court.  (Lord Radcliffe - 1899 to 1977 - was appointed to the House of Lords in 1949).  Lord Sumption (as he is now styled) sat for the first time on 12th January - in the shipping case of Petroleo Brasileiro S.A. (Respondent) v E.N.E. Kos 1 Limited (Appellant) - (see UK Supreme Court blog for details and see Court of Appeal judgment)    

The Times (12th January) carried details of an interview given by Lord Sumption - "Keep out of politics, top judge warns his peers" - (Subscription required).   The Times reports Lord Sumption as saying - "It is one thing for judges to review whether a government policy was being lawfully applied and another to review the policy itself."  In November 2011, Mr Sumption (as he then was) delivered
the F A Mann Lecture - "Judicial and Political Decision-Making: The Uncertain Boundary" which may be read here.  In that lecture, Mr Sumption made it clear that he considered that judges had sometimes overstepped the mark and entered into the policy arena which is properly for Parliament and Ministers.  He concluded his Lecture by saying that "English law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts."

Lord Sumption

Of course, whenever Ministers establish a "policy" they have to give legal effect to it and this is done by enacting legislation.  Hence, the "policy" lives and breathes only by virtue of the legislation.  Clearly then, there will often be a fine line between a legal attack on the application of legislation and a legal attack on the policy.

In most law schools, students are told that "Judicial Review is concerned with legality."  This is true and, particularly since the 1970s, the courts have developed a considerable array of methods by which decisions can be challenged.   These have been developments of the common law.  Judicial review seeks to ensure that decisions are taken "rationally in accordance with a fair procedure and within the powers conferred by Parliament" - Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 - per Lord Hoffmann at para. 73.

Undoubtedly, the major change in this area has been the Human Rights Act 1998.  The Act opened up a new and major avenue of challenge.  PARLIAMENT itself commanded the judges to interpret legislation in a certain way (section 3) and empowered the higher courts to make a "declaration of incompatibility" (section 4).   Section 3(1) is clear - "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."  Section 4(2) is also clear - "If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."

Hence, by command of Parliament itself, the courts view even Acts of Parliament through the lens of the European Convention on Human Rights and, where the judges consider that the Act is incompatible, they may make a declaration to that effect.  The "fine line" between policy and its application has been made much narrower by the 1998 Act.  A declaration does not alter the law and it is then for Parliament to amend the law.  In this way, the final say on policy still remains with Parliament and not with the judges.

See "Responding to Human Rights Judgments" - Ministry of Justice - a very thorough analysis of the government's position in relation to particular judgments.  Those who are serious about getting behind the media headlines would do well to read this paper which considers the year August 2010 to August 2011.

Addendum 16th January:  UK Constitutional Law blog - "Tom Adams: Lord Sumption and Judicial Responsibility."