Judicial review is a mere Elastoplast

A Bill of Rights would be more democratic than judges just making it up as they go along; What is needed is a reform of Parliament and a devolution of its power
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The Independent Online
A country without a written constitution has to make it up as it goes along. We are now living through a remarkable shift in power that has passed largely unnoticed - the uprising of the judiciary. But there is growing protest at this newfound might of the judges arising from the Tory benches. Judicial review has crept stealthily into our political process by the back door.

Decisions taken by ministers and even by Parliament are increasingly struck down by the judges. MPs jealous of parliamentary sovereignty complain that the judiciary is usurping their power. It was the judges who struck out the Foreign Secretary's decision to give aid to the Pergau Dam. The judges threw out the Home Secretary's new Criminal Injuries Compensation scheme, although Parliament had passed the legislation. There is a growing belief among lobbying groups that if you can't win your case on the floor of the Commons, turn instead to the courts where a sympathetic judge may back your cause.

Sir Ivan Lawrence, chairman of the Home Affairs Select Committee, complains bitterly: "This is a very dangerous path. This virus in our judicial system is substantial and it can't go on growing." He protests at the multiple challenges to the Home Secretary's decisions and openly accuses the judges of political motivation. In particular, he attacks Lord Woolf, the father of judicial review, champion of its development. Sir Ivan was shocked when he attended a speech of Lord Woolf's last year publicly attacking Michael Howard's 27 proposals for toughening up the law. Sir Ivan warns the judges off playing politics.

Fifteen years ago, a far more conservative judiciary was deeply loath to become embroiled in the political process. Judges then refused to hear "class actions" on behalf of interest groups or lobbies, but now they have relaxed the rule. Greenpeace, Friends of the Earth, the World Development Movement, Stonewall and Amnesty International are among those bringing their campaigns to the courtroom.

Cases come before the courts not only on matters of principle: the judges are willing now to make decisions that have huge financial implications, telling the state how to spend its money. When a group of disabled Gloucester pensioners took their county council to court over the removal of their home helps, the court ordered them all to be reassessed, which will cost the state some pounds 20m.

In the past 10 years the number of judicial review cases has risen sixfold, to over 3,000 last year. Lord Woolf wrote a book on judicial review 20 years ago that is about to be re-issued. He says he will have to rewrite it substantially, so much has changed, and much of it under his influence. Immigration policy, housing, prisoners' home leave, community care - no policy is beyond a court challenge.

Also, judges feel freer to express their political views. When Lord Justice Simon Brown pronounced in the judicial review of gays dismissed from the armed forces, he made very clear his reluctance to find in the Government's favour. He told the former soldiers they would win if they took their case to the European Court of Human Rights in Strasbourg, and described the Government's policy as "wrong" and "damaging to human rights". He argues publicly in favour of incorporating the European Convention into British law.

At a time when our institutions have been groaning under the oppressive weight of one-party rule for the past 16 years, this new assertiveness by a group of liberal, progressive judges feels like a breath of fresh air in the musty corridors of power. Where opposition in the Commons is futile in the face of the might of an elected dictatorship, there is a need for a political court of appeal, and the judges are stepping into the growing vacuum at Westminster. The judges say, and Sir Ivan Lawrence admits it is true, that more slap-dash, loosely worded legislation now passes through the Commons without sufficient scrutiny. This opens the door to judges to make their own interpretations.

But this is constitution-writing on the hoof, hotchpotch and piece-meal. Judicial review may be better than nothing as an avenue for redress, but it is haphazard, depending far too much on individual judges. Despite the high-profile cases that make headlines and anger the Government, it is in fact extremely difficult to get a case heard. Last year, only 37 per cent of applicants were granted leave to have their cases heard at all, and of these, less than a third won.

Although progressive judges now hold many of the top posts, there are still many more of the old school. Research shows that some judges are four times more likely to grant leave for judicial review than others. If this has become an important new arm of our Constitution, then the rules need to be written down, clear-cut and applied equally by all judges. Even so, courts do not make an efficient part of the political process. Judicial review costs an average of pounds 50,000 to bring a case, with a heavy risk of failure.

Labour MPs have looked on with glee at the spectacle of government policies demolished in the court-room. Where Labour has failed to get legislation stopped or amended on the floor of the House, the judges do their work for them. But a future Labour government may find the judiciary just as troublesome. They too will wonder how unelected judges acting on their own can overturn decisions taken by the democratically elected Commons. The next logical step in this progression would be to force American-style election of judges, something for which there is very little appetite.

Labour would do well to recall that the first political case of judicial review was when the right-wing group the Freedom Association in 1979 challenged the trade union closed shop. There was also the strange case when Lord Rees-Mogg was given permission for a judicial review of the Maastricht treaty, a matter in which he had no standing - but he managed somehow to attract the sympathy of a judge.

The ascendancy of the judges, in the shadow of inquiries by Lords Scott and Nolan, might seem like a shaft of light in these dark days of sleaze, with a whole generation of civil servants corrupted by having no experience of serving anyone but the Conservative Party. But it is only an Elastoplast solution to a far greater constitutional malaise.

What is needed is a reform of the way Parliament works and a devolution of much of its unwieldy and badly managed power to those who can use it better. A Bill of Rights would secure essential principles to guide all future legislation, rules by which the courts would be bound in their interpretation of Parliament's laws. Open debate about what such a Bill should contain would be far more democratic than allowing the judges to make it up as they go along.

Polly Toynbee presents 'Courting Change' on Radio 4's Agenda programme next Saturday at 11am.