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19 Jud. Rev. 1 (2014)

handle is hein.journals/judire19 and id is 1 raw text is: 






[2014] JR   DOI: 10.5235/JR.23.2.1


Who Guards the Guardians?

The Rt Hon The Baroness Hale of Richmond*


1. It is a truth universally acknowledged that judicial review is, in the Ministry of Justice's
   own words, a critical check on the power of the state, providing an effective mechan-
   ism for challenging the decisions, acts or omissions of public bodies to ensure that they
   are lawful.1 The same is true of other public law remedies, such as statutory appeals
   and actions under the Human Rights Act 1998, whereby the decisions, acts or omissions
   of public authorities may be challenged in the courts. This is a necessary component of
   the rule of law and, as famously pointed out by Lord Bingham in the Belmarsh case,2 the
   role of the judges in enforcing it is an essential part of the democratic process. Indeed, in
   our Westminster-model democracy, Parliament cannot be sovereign without the judici-
   ary to ensure that the executive and other public bodies stay within the law.

2. That is all very well, but judicial review can also be a confounded nuisance. When we
   were preparing for the move from the House of Lords to the Supreme Court, planning
   permission and listed building consent had been obtained for the conversion of the
   Middlesex Guildhall to suit our purposes and the builders were ready to move in, SAVE
   Britain's Heritage launched a judicial review of Westminster City Council's decision.3
   Fortunately for our purposes, they did not succeed and most of our visitors seem
   delighted with what we have done with the building. But should they have been able to
   do it at all?

3. The approach we adopt towards the standing required for people and organisations to
   bring claims for judicial review or other public law remedies is crucial to the constitu-
   tional purpose which they serve. The same is true of the approach we adopt to govern-
   mental and non-governmental bodies who want to intervene in the proceedings to
   draw to our attention arguments or material which, for whatever reason, the parties
   may not have put before us.

4. Allowing, even encouraging, people to take an active part in the enforcement of the law,
   so as to encourage a judge over the shoulder attitude on the part of government, must
   be a good thing. On the other hand, allowing any old busybody to bring proceedings
   which will delay or even prevent perfectly lawful governmental actions and decisions
   must be a bad thing, as must allowing them to interfere in other people's proceedings.
   Distinguishing between busybodies and champions is almost as difficult as distinguish-
   ing between terrorists and freedom fighters. But too close a concentration on the par-
   ticular interest which the claimant may be pursuing risks losing sight of what this is all
   about - fundamentally, as Mark Elliott has said, the issue is not about individual rights
   but about public wrongs. There are better ways of nipping unmeritorious claims in the
   bud than too restrictive an approach to standing.


* This article is taken from a speech delivered at The Public Law Project Judicial Review Trends and Forecasts
Conference 2013.
1 Ministry of Justice, Judicial Review: Proposals for further reform, Cm 8703 (2013), para. 1.
2 A v Secretary of State for the Home Department [2004] UKHL 56 [2005] 2 AC 68.
3 R (Save Britain's Heritage) v Westminster City Council [2007] EWHC 807 (Admin).

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