JUDICIAL RESTRAINT
Judicial restraint is one of those familiar phrases that is full of meaning but in practice determines too little substance. It has its place,
21 Lord Devlin, ‘Judges as Lawmakers’ (1976) 37 Modern Law Review 1.
but needs to be used wisely. It depends on the emanation of the precise sense: does it come from a judge to explain his attitude to parliamentary or governmental action? Or is it implicit in a historical attitude towards judicial adjudication on a statutory provision or executive action that insists on the essence of social policy? Commonly enough there is a recognition of the task of Parliament and the Executives in tandem with the courts, to govern the country. To do otherwise is to proceed to a state of unwarrantable intrusion by the courts into the political field, and thereby a usurpation of the function of Parliament. But the popularism of that eminence is, I venture to think, no longer the proper view of their relationship. Nowadays, increasingly frequently, the emphasis is on ‘the relative institutional competence’, a phrase that has more creative possibilities than the ‘separation of powers’. It has been best described by Lord Bingham in A v Secretary of the State for the Home Department:The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.[25]
It has the great merit of being based on an articulated awareness of the contribution each of the institutions of good government can make to constitutional checks and balances.
To close one’s eyes to the frequent inactivity, not to say impotence, to the activities of Parliament (often dictated by political whimsy and motivation that does not induce good government) is not an adequate response of the judge. The instant case in the court of law must always operate; it defends initially the individual against the State. It depends for its constitutional effectiveness on the existence of the restraints within Parliament. Absent parliamentary restraint, judges operate a constitutional logic for a rule that intrudes on behalf of the individual. And the citizen expects that the powers of the State are shared among the constitutional institutions according to the nature of the exercisable powers.What should be the principles of judicial restraint? Nothing generally should be barred from judicial restraint, if only because any remedy against the legislature or the executive would be simply ‘think again’. Such was confirmed by section 2 of the Human Rights Act 1998. Judicial restraint, however, may be properly exercisable so long as the judiciary acts upon empirical evidence that is prescribed to it. Too much recent judicial action is based, not upon empirical evidence, but on opinions of public attitude that are insufficiently fact-based. An example comes from one High Court judge in June 2012, who ruled in a case testing a privileged occasion of a defence to a libel action.[26] The judge expressed as his reason the view that there was a publicly espoused confidence in the criminal justice system; and added, without any factual evidence at all, that a prosecutor’s statement diminished (as opposed to enhanced) public respect for that instrument of criminal investigations. Courts of law are decision-makers on factual material and are not formers of opinions or attitudes. These are matters for politicians and the rest of us to express through democratic institutions. Financial aspects of policy and other administrative decisions are made on the basis of finite funds and a proper distribution of funds; courts are generally not a party to issues over financial matters.
But other policy issues are not aptly described as ‘political’ matters unsuitable for courts of law where the latter have sufficient evidence to make decisions. Courts, if adequately informed, are as much political as are other institutions in society. Decision-makers (whoever they may be in the process of the legal system or public administration) must always justify what they are doing by giving good reasons, by effecting good government. Judges should not construe statutes of Parliament or ministerial actions which are said to confer power to interfere with such rights any differently from the way they would value a clause said to oust or modify their own jurisdiction. Such an attempt by the Government is simply a manifestation of one fundamental right. That is the nature of what I call judicial and judicious review.A comparatively early example involved a challenge to the Ministerial obligation to establish and maintain the National Health Service. In R v Secretary of State for Social Services, West Midlands Regional Health Authority and Birmingham Area Health Authority, ex parte Hincks and others,[27] an orthopaedic surgeon and several patients awaiting hip replacement operations claimed, understandably, that they should not have to wait for additional surgical resources to be made available. Their counsel argued hopefully[28] that the Minister for the Health Service had failed to provide a reasonable remedy for the citizens in the Good Hope Hospital in Sutton Coldfield. The National Health Service Act 1977 provided that it was ‘the Secretary of State’s duty to provide throughout England and Wales to such extent as he considers necessary to meet all reasonable requirements’ hospital accommodation and medical services. It was pleaded by way of defence that the additional services could not be provided within the money available to the Minister. More specifically, the lack of resources defeated the claim, since the duty could not be absolute; the supply of funds for the NHS was for Parliament to maintain. If finance is quintessentially a matter for executive government, that pre-determined the judicial review, unless there was sufficient evidence to negate the duty. So it would be today. But even if financial policy preceded judicial review, the defence of imperfect duty would be a legal safeguard from judicial intervention.