Edited version of Lord Clyde's keynote address on judicial review, to the Murray Stable conference on Public Law in Scotland
I begin with some observations about labels. The term Public Law is one with which as a lawyer trained in Scotland I have always had some difficulty. When I was at Edinburgh University, Public Law was the label which was given to jurisprudence, the philosophical aspects of law and legal systems. Administrative Law covered those laws and processes which belong to local government and administration, roads, sewers, licensing and suchlike.
The process for challenging the legality or propriety of the exercise of powers did not have any clear label. It was buried in the forms of procedure, in Constitutional Law and in relation to the practices of local government in Administrative Law. It had no independent standing on its own. Up until the middle of the last century there was no problem about that. As Lord Reid observed in the English case Ridge v Baldwin  AC 40, 77: “We do not have a developed system of administrative law, perhaps because until fairly recently we did not need it.”
When the need did arise, England proceeded to import the terms “private law” and “public law” from continental countries which had separate systems concerning public law and private law in a way which was foreign to the legal systems in the United Kingdom. What then appears to have happened was a quiet adoption in Scotland of the same terminology, albeit alien to Scottish tradition. Public Law came to be understood as the law which enforces the proper performance by public bodies of the duties which they have to the public.
One vice this practice carried in its train was the idea that these terms conveyed a difference of substance which could be used as a measure to define the boundaries for judicial interference in administrative acting. That may have suited the English approach but it was dangerously limiting for Scotland. While Public Law may include much of the material of judicial review, it does not comprehend the whole of it. Judicial review should be available in disputes where there is no truly public element in the ordinary sense of that word, such as an arbitration between private tenants as in the old case Forbes v Underwood (1886) 13 R 465, or the disciplinary proceedings of a club or association (e.g. St Johnstone FC v Scottish Football Association 1965 SLT 171). Correspondingly, while judicial review may comprise a significant part of Public Law, there are other methods of enforcing the duties of public bodies.
An emerging jurisdiction
It is the more curious that Scotland should have adopted the English terminology when one recalls that the history, source and procedures for what we now know as judicial review were significantly different in the two jurisdictions.
Judicial review did not of course spring fully created from the head of Lord Dunpark when he drafted the original of what is now Chapter 58 of the Rules of the Court of Session. The remedy had been available in some form for over 300 years. At an early period it was part of the jurisdiction of the Scottish Privy Council. When this was abolished following the union of 1707, this jurisdiction then devolved onto the Supreme Court.
It is important to note that this jurisdiction is firmly based on principle. That principle was, in the words of Lord Kames, that every wrong must have a remedy (Historical Law Tracts (4th ed), 228). He looked forward to a time when it would be a recognised maxim “That it is the province of this court, to redress all wrongs for which no other remedy is provided”. The origin of the jurisdiction was recognised by Lord Kames as being the inherent equitable power in a supreme court to provide a remedy where no other existed. In a broad sense of the term it is an expression of the nobile officium of the Court of Session.
By contrast, the procedure in England for what later came to be judicial review was for long carried on through the prerogative writs. These were issued in the name of the Crown with the aggrieved person being added ex parte. The system did not rest on the broad equitable principle which was the foundation of the Scottish approach. The remedies available were formerly also more limited.
In 1981 England introduced a new special form of action through the Supreme Court Act, namely an application for judicial review. Prompted by the observations of Lord Fraser of Tullybelton in Brown v Hamilton District Council 1983 SC (HL) 1, Scotland introduced its own form of procedure for applications to the supervisory jurisdiction by an amendment to the Rules of Court in 1985. But while England was the first to introduce a special procedure for judicial review, Scotland the first to be able directly to invoke rights provided by the European Convention on Human Rights and Fundamental Freedoms, through the Scotland Act 1998. England had to wait a further year until the Human Rights Act 1998 came into force.
While the grounds for review have become broadly the same in Scotland and England, differences remain both in basic principle and in procedure. One initial difference in procedure lies in the English requirement for leave to make an application. It appears from the available statistics that a considerable proportion of applications in England fail at the stage of leave. Scotland appears to manage perfectly well without such a preliminary consideration. If the proposed application is obviously without merit, it can be dismissed at first order stage. The number of applications in Scotland would not appear to justify the addition of a distinct hearing to obtain leave to proceed. Sadly however, as I shall note later, it appears that this is not to be recognised in the work of the new Upper Tribunal.
Both the introduction of the new procedure and accessibility to the Convention rights in the courts of Scotland and England gave rise to a significant increase in the number of judicial review cases. There is a lesson to be learned here in the way in which a reform of procedure can open the way to a greater access to the courts. Similarly, the passing of the Human Rights Act 1998 prompted a quantity of litigation on issues which could previously have been aired by application to the Strasbourg court but which no one had troubled to pursue. The moral is that if you simplify procedure you will open the way for the airing of grievances which would otherwise remain unresolved.
The number of cases which have come before the courts reflects the continuing importance of the availability of the remedy. Between 2000 and 2005 the number of applications for judicial review in England fluctuated, but overall discloses a general upward trend. England has developed its own administrative court and it has been suggested that that court should extend its sittings to certain regional centres in order to accommodate the quantity of business. In the same period in Scotland there was a similar pattern. The upward trend has continued quite markedly. The number of applications in Scotland rose from 229 in 2005 to 231 in 2006, 239 in 2007 and a surprising 372 in the first nine months of 2008. In both countries immigration cases have featured as the most prominent single category and various aspects of human rights have become regular ingredients in the grounds on which review may be sought.
It seems likely that the trend will continue. There is a very real concern nowadays that governmental powers may be open to abuse and that powers which may encroach upon private freedoms may be used for purposes different from those for which they were originally granted. One reads for example from time to time of cases where provisions made in the interests of countering terrorism have been used to dealwith activities which no one would ordinarily see as involving a terrorist threat.
Scope for reform
What then of the future? The whole system of civil justice in Scotland is presently the subject of formal consideration. The recent report on the subject by the Scottish Executive says little about judicial review. It remains to be seen what views will be expressed in the comprehensive review of the civil courts under Lord Gill. The Scottish Committee of the Administrative Justice and Tribunals Council, which submitted its first report in October 2008, is keeping a vigilant eye on the development of administrative justice particularly at tribunal level. It may be hoped that the work of that committee will not only achieve an improvement in the functioning of tribunals and inquiries but enable there to be a greater coherence of the whole system of administrative justice in Scotland.
Developments in administrative law, and in judicial review in particular, can be usefully inspired by conferences such as today’s. Reform sometimes requires legislation. Other improvements may be managed by changes in practice or by the developing jurisprudence of the courts. But in that context one observation may be made. The courts can only develop the law when a particular case happens to arise which provides the opportunity to do so. Much of the initiative accordingly lies in the hands of those who advise in advance of litigation and who argue the case before the court. Some at least of the credit for the progress made in many leading cases should go to those whose thought and imagination prompted the argument and persuaded the judges. I believe that every encouragement should be given to practitioners to start the process which leads to reform, whether by a piece of lateral thinking, or the determination to secure a remedy where the situation seems to demand one or to tread where no one has trod before.
One subject which may deserve consideration is locus standi. It might be suspected that England has developed in this connection more liberally than Scotland has yet managed. England has looked simply to the qualification of a sufficient interest. Scotland has for some years been wrestling with the twin requirements of title and interest, concepts which may have worked well in other contexts, but which may be overelaborate for the needs of judicial review. I should like to think that that matter has now been substantially resolved. Indeed the test for the purposes of judicial review proceedings before the new Upper Tribunal (Tribunals, Courts and Enforcement Act 2007, s 16) is simply one of sufficient interest. But there may still be room for development in the ability for representative bodies to raise proceedings for review. In many cases it may be possible to find one or more individuals personally affected by the issue and in whose name proceedings may be taken, but it would be advantageous not to have to resort to such devices.
Another area where clarification may be desirable is that of error of law, as a ground for review. The old view that a tribunal might with impunity commit what was called an error of law within jurisdiction (intra vires error) lingered on in Scotland longer than was perhaps appropriate. English law has been more liberal. But there now seems to be no good reason for supposing that the laws of Scotland and England are not the same in this regard. Cases can still occur where error of law is not available as a ground for challenge (e.g. Diamond v PJW Enterprise Ltd 2004 SC 430). It would be useful for this ground to be comprehensively analysed and clarified.
One more general matter which deserves some consideration is the achievement of a better understanding or a more co-operative relationship between the executive and judiciary. I would like to think that this is a problem which is more real south of the border, but one often hears charges of so-called judicial activism. The executive may find itself frustrated by the judges. Well intentioned policies are found to be illegal, contrary to human rights, or simply ultra vires. The judges are then accused of becoming involved in politics. Politicians urge the judges to show restraint in deference to the sovereignty of Parliament. It is pointed out that the judges are not accountable within the confines of the electoral system. But on the other hand they are bound to set out their reasoning in their judgments so that the process is open to public scrutiny. Moreover their judgments may be open to appeal. And they remain the eventual constitutional guardians of the rule of law.
Of course some of the questions which now come before the courts bring the judges very close to the political arena. But the distinction between the functions is and has always been perfectly clear. Matters for political judgment are not matters with which the courts are properly concerned. Where the courts can intervene, the executive should recognise that the judges are not doing otherwise than preserving the constitutional rights of the citizen. The judges must also be aware of the political dimension of the issues with which they have to deal. The respective functions of the executive and the judiciary must be recognised and respected. Ideally both should perform their different functions with mutual respect and understanding for the eventual benefit of society and its citizens.
In looking for possible ways of improving the relationship between the judiciary and the executive, one might consider the relative restraint on the readiness of the courts to entertain future or hypothetical questions. I wonder if there could be advantages in the opportunity to bring questions to the court, in advance of legislation, to test the legality or otherwise of proposed measures, rather than allowing bad legislation to be passed and then subjected to challenge in the courts. I am not suggesting that we should develop a distinct branch of the administration, charged with the vetting of proposed legislation in the style of the consultative or advisory sections of the French Conseil d’État. The matter must remain one of a judicial process, with at least a potential issue and presumably a friendly contradictor. But the opportunity for challenges to be made to the legality of proposed legislation in advance of its presentation might help mitigate the supposed confrontation sometimes thought to exist between the executive and the courts.
The future for administrative law
I turn now to the more general consideration of what I have referred to as administrative law.
The latter part of the last century saw the development of an extensive series of tribunals. For a variety of reasons the machinery for resolving the many potential disputes to which new legislation gave rise was found in the creation of a multitude of specialised inquiries and tribunals. The courts stood somewhat on the sidelines, taking perhaps too little positive initiative in the process. Appeal from the statutory tribunals was one link with the courts, and the remedy of judicial review provided another. But what was clearly lacking was a coherent scheme for the whole processes of administrative law. What also remained unresolved was a clear structural relationship between the tribunal system and the courts.
The solution advocated by the late Professor John Mitchell to the problem of providing a sufficient judicial control of administrative acting was the establishment of a new body with a real administrative jurisdiction. He wrote (Administrative Law (2nd ed), 322) that “the power of a court is needed to match the power of government, but the law it administers must be attuned to the needs of a modern state…. Only a new body can break the established patterns easily enough to establish a coherent and efficient jurisprudence in this vital field of the modern relationship of man and the state…. An administrative jurisdiction can be, and has been proved to be, an effective solution, providing proper protection for the interest of the state and individual with all the weight of a judgment while at the same time avoiding the danger of trying to convert government into a judicial process”.
Much has happened since he wrote these words. We have developed various forms of remedy such as the greater availability of ombudsmen or commissioners who can receive and process complaints at little or no cost to the complainer. Such bodies may however lack teeth, and the effectiveness of a court order should not be underrated. We do now have a special expeditious procedure for judicial review.
The developing strength of the remedy has gone a considerable way to providing a powerful judicial control. But on the other hand administrative law has developed significantly over the last 50 years. And now a potentially major change is about to be developed in the working out of the Tribunals, Courts and Enforcement Act 2007. Under its provisions the whole tribunal system acquires a coherence and control which has long been seen as desirable.
Here is a new and vital structure for administrative law. But there are to my mind two matters which remain for concern.
Under this Act, certain areas of the work of judicial review will be transferred away from the Court of Session to the new Upper Tribunal. In my view this is a matter for regret, as it breaks the principle on which the Scottish system of judicial review has rested hitherto and may simply water down the importance of the unique remedy which was the prerogative of the supreme court. Moreover the new system necessarily covers the whole of the United Kingdom, and the distinctions between Scottish and English practice can in that context readily become blurred. It seems from s 16 of the Act that the English requirement for leave and the English test for locus standi have been adopted for the Upper Tribunal on both sides of the border.
The full scope of the change has yet to be seen and its effect assessed. But it might have been preferable to work towards a cohesion of the whole system of administrative law and practice, rather than dividing off parts of the jurisdiction of the supreme court in judicial review and entrusting them to a new body.
The second matter is that of the structural relationship between the new tiered system of tribunals and courts. Court of Session judges and sheriffs may be judges on the first tier tribunals and the Upper Tribunal. But is there a sufficiently solid structural link between the two institutions?
An Administrative Court
One course which might be suggested is the creation of what at least in name would be a new Administrative Court. It could initially be achieved by a simple allocation of Court of Session business to a special division of the court. It could have both courts of first instance and of appeal, exercising the supervisory jurisdiction in civil matters and also taking over administrative appeals, such as from the decisions of the Upper Tribunal. The present statutory appeal courts, such as the Lands Valuation Appeal Court, could also be included. There may indeed be advantages for the Court of Session in separating off the considerable bulk of statutory appeals, which presently impose a heavy burden on the court.
Such a development would involve the courts more closely with the overall system of administrative law, accelerate the progress of any matter falling within the scope of administrative law, and provide a more particular expertise in that field. The relationship between the Upper Tribunal and the new court would be one matter for development. But while the new department would still be a part of the Supreme Court, it could be the more free to develop its own processes with a greater flexibility than those of the ordinary civil courts.
Ideas might then be developed towards easing access to judicial review – even without, at least initially, the need for professional assistance or representation. It might be possible for a judge with the powers but perhaps not the panoply of the Court of Session to be available for direct access to the citizen, to deal with those more minor infringements of rights which irritate without being over-serious but which if allowed to pass unchecked may encourage a lowering of standards and further neglect of the rights of the citizen. At the least a separate department with its own procedures, calculated to secure economy, simplicity and speed, might secure processes which are proportionate to the character of the particular issues involved and a system which gives real value for money – the two key principles which the executive has formulated for the current civil justice reform.
It is one thing that there should be remedies available to the citizen in his or her complaints against the state, but it remains of vital importance that the availability of those remedies should be well known to everyone. It is said that judicial review does not have the prominence in the legal system or the public mind which it deserves to have. Certainly when you appreciate the standing which a Conseil d’État enjoys in the continental countries which possess one, the Scottish equivalent can seem quite undistinguished. There is a real risk that cases simply become submerged in the general work of the supreme court. The remedies available are not unique to those cases and it is only the subject matter which identifies them. One consequence has been that it is not immediately obvious to the public that there is here a special jurisdiction being exercised, with remedies available for them in a multitude of situations where they have grounds for complaint about illegalities or improprieties.
The introduction of the special expeditious procedure for judicial review has gone some way to bringing the remedies available to the notice of the public. As I mentioned earlier, it is surprising how a procedural change can open the way to a greater accessibility to the justice system. A special department of the Court of Session denominated as the Administrative Court might go some further way towards enhancing the importance of administrative law and making its availability more evident. The Scottish court system would then be seen to rest on three pillars: the criminal courts, the civil courts and the administrative courts.
I began this talk with some observations about labels. May I conclude on a similar theme.This speech has been billed as a keynote speech. I do not know when this phrase first came into fashion, but it certainly seems that no conference nowadays can exist without a keynote speech. I have often wondered what the particular magic of the keynote element was meant to be. I do not know the messages which today’s speakers will bring. Will they be a gloomy C sharp minor, worrying about the present or future state of Public Law in Scotland? I hope not. What I propose is the joyful key of D major, full of pride for the past tradition and full of confidence for the future. Scotland has a solid base of principle on which to develop a jurisdiction the value of which has become all the more evident over the past 50 years. The task of ensuring that government lives by the rule of law and respects the rights and principles of a free democratic society remains one of major importance. Scotland is well placed to secure that that work continues to be efficiently performed.
The full text of Lord Clyde’s address is available to view online at www.journalonline.co.uk/extrasa