Judicial Review: its Genesis and Growth Post-1977
ICLAIM, NOT over-modestly, to have grown up professionally in the 1970s with the beginnings of judicial overseeship of ministerial and administrative action taken by the State against the citizen.
In the latter part of the twentieth century it had become imperative in modern democratic societies that governments should be answerable and accountable to the institutions which constitutionally safeguarded the rights of the citizen against public authorities. The late Professor Stanley de Smith, in the early (1960s) edition of his classic work, Judicial Review of Administrative Action, wrote, in his fluid and distinctive literary style with meticulous accuracy and thorough scholarship, that ‘departmental administration may bring in a political storm’. If he was depicting a legal tsunami, he was accurately predicting the permanent system of English administrative law. Politicians did not relish this judicial function.It is not that this country wished its government to go unchecked. Lord Devlin aptly observed that the British had no more wish to be governed by judges than they had to be judged by politicians and administrators. Given that attitude by a citizenry which espoused individual freedom, it is little wonder that the judiciary initially limited its tentacles to controlling inferior tribunals via the exercise of the prerogative procedure on behalf of the sovereign royalty. But the huge gap of control over ministerial and administrative action had sooner or later to be filled. This happened in two postSecond World War stages, enhancing the remedy for complaints against public officials. The first came in 1967 with the passing of legislation providing for the Parliamentary Commissioner for Administration, exemplifying the public stirrings on the subject of governmental administration. An informed and increasingly informative public led to a Scandinavian creature called the Ombudsman (‘grievance man’).
In typical Englishness, it took time for the title of Parliamentary Commissioner for Administration to be known, first colloquially and then officially via the Oxford English Dictionary, by its Scandinavian title.In 1958 Professor Stefan Hurwitz, a distinguished criminologist at the University of Copenhagen, who had in 1954 become the first Danish Ombudsman, gave a lecture tour of this country describing the duties of surveillance over administration. His visit had stimulated interest in Denmark (and in 1959 simultaneously in Norway) of the first Ombudsman in the style of the Swedish mode which originated obscurely, in the Swedish constitution of 1809, but had been studiously ignored outside Sweden and Finland. As the Observers legal correspondent, I was an early stimulant. In the spring of 1959 I visited both Denmark and Norway and observed the nascent development. What I found there I described in detail in two articles in the Sunday newspaper in May and June 1959. The follow-up was a committee of JUSTICE under Sir John Whyatt, a former Attorney-General in Kenya during the Mau Mau troubles. It recommended the appointment, which was promptly taken up by both of the main political parties without much fuss or bother. I can do no better than quote part of the leader article published by the Observer on 7 June 1959. It reads as follows:
For some time we have looked towards the Scandinavian countries as models of what a democratic State should be. In town planning and architecture, in social and industrial relations, in physical education and penal reform, they are often in advance of this country. Can it be that they have, in the Ombudsman or grievance man, another institution which Britain should try to copy?
That there is a need for something of this kind is certain. The growing power of the State has given Government departments and bureaucrats of all kinds enormous powers over the affairs of ordinary citizens. In most cases these powers are used carefully and with restraint but when a department or a bureaucrat oversteps the limits and acts tyrannically, it is extremely difficult, if not impossible, for the ordinary citizen to obtain redress.
In Scandinavia both these cases would have gone to the Ombudsman. There any citizen who has a complaint to make against a department or an institution, may have it investigated, free of charge, by this official, who is appointed by Parliament for the purpose. Unlike anyone else outside the Government, he has the power to pry into all Government documents and can hear witnesses. The Ombudsman has no executive power, but he is so trusted and respected both by citizens and Governments that his recommendations are almost always accepted.
The natural place to look is to our judiciary. In Britain, the judges have traditionally been the protectors of the citizen's rights against incursion by the executive agents of the State. Indeed, it was the alliance of the Common Law with Parliament which won for Parliament its legal supremacy over the Crown. But the Common Law has grown old and stiff; it no longer has the youth and suppleness to combat the new invasion of the citizen's rights by administrative power.
The idea originated in Sweden. An Ombudsman would have come quite naturally to the Swedes even in 1809. Ever since 1766 the Swedish citizen has had the right - it was lost temporarily between 1772 and 1809 - of free access to official documents. The citizen could walk into any government department and ask to see any document, except for specific documents vital to the safety of the State. The Ombudsman, in his access to official documents, was therefore merely exercising the collective rights of every citizen.
Since 1967 there have been nine appointments, and the system was extended to local government in 1973. The appointees have generally been retired civil servants of senior rank, reporting regularly to Parliament. In 1972 the system was extended to local authorities, without the necessity of the citizen having to process the claim through an elected councillor. But neither system possessed any executive power to enforce the remedy: a recommendation to compensate sufficed.
The appetite for complaints systems did not abate. It spread throughout the system, with a clamour for legal remedies.Judicially, it mushroomed in the growing field of public administration. In the 1970s there was a regular pattern of forensic action by way of the High Court, under the presidency of the Lord Chief Justice hearing applications for leave to grant one or more of the prerogative writs. No doubt stimulated by the arrival of Ombudsmanry, applications for leave multiplied - I have always preferred the good Anglo-Saxon word ‘leave’, to the Woolfian introduction in 1998 of the Latinism of ‘permission’ (the two are now permanently interchangeable). With the waning capacity of Lord Widgery, the court portfolio became unmanageable by the administrators. Lord Justice Donaldson (later, as Master of the Rolls in succession to Lord Denning in 1982, given the title of Lord Donaldson) was drafted in to clear the Augean stables of this specialist jurisdiction. This was achieved successfully and swiftly, giving rise to the advent of Order 53 of the Rules of the Supreme Court.