Lord Bingham and the role of the courts: A response to Helena Kennedy

As the great judge knew, judicial review has limits

September 04, 2020
Bingham in 1996. Photo:  Adam Butler/PA Archive/PA Images
Bingham in 1996. Photo: Adam Butler/PA Archive/PA Images

My friend Helena Kennedy is right to praise Lord Bingham and to say that the government’s prorogation of parliament demonstrates a contempt for the rule of law, but I part company from her in the suggestion that the very notion of a review of the way judicial review works is “constitutional vandalism.” I also doubt that the judges will be “intimidated” by this new body as she fears. On the contrary, I believe that a review of the way in which judicial review operates is timely.

Professor Brian Tamanaha described the rule of law as “an exceedingly elusive notion” and analogous to the notion of the good in the sense that while “everyone is for it,” they “have contrasting convictions about what it is.” Lord Bingham put much flesh on this in his writings and decisions.

Lord Bingham was alive to the difficulties in his excellent book The Rule of Law. He said that judicial review of the lawfulness of administrative action “is the judges’ stock in trade, the field in which they are professionally expert. But they are not independent decision makers and have no business to act as such… They are auditors of legality; no more, no less.” He adverted to the fact that the unreasonableness rubric in judicial review was “more difficult territory” and it is this contested area into which some decisions may be seen as straying. In some areas of judicial review, law is too often seen as the continuation of politics by other means.

Lord Sumption was surely right when he said in his Reith Lectures “in the last half century the courts have developed a broader concept of the rule of law, which penetrates well beyond their traditional role of deciding legal disputes and into the realms of legislative and ministerial policy.” The broad concept the judges have developed of the rule of law (for example in the UNISON case on employment tribunal fees) enlarges their constitutional role, however much we may welcome the actual decision in the UNISON case. The role the judges lay claim to is more like that of the US Supreme Court. This may be a good thing but it is appropriate that it should be subject to review.

There has been an explosion in the number of judicial review cases over recent decades, and the much-relaxed rule on who may bring a claim, the generous views of time limits and who may be heard are also ripe for review (as are the soaring costs). Hopefully the committee can go about its work away from the hysterical headlines which accompanied its launch, which were no doubt formulated by the vandal tendency within government. Thankfully Edward Faulks QC, the chair of the review, is hardly a card-carrying member of the weirdos and misfits brigade.