3 - Transforming judicial review

Summary

Beginnings

Kenneth Culp Davis, a leading American academic visiting England in the 1960s, described English judicial review as restricted by an old-fashioned, positivist corset ‘astonishing to one with a background in the American legal system’. English judges strove to avoid consideration of the policy aspects of the issues they decided and the typical lawyer:

responds with consternation to an inquiry into the soundness of the policies embodied in a judicial decision, and, if he persists, the inquirer is gently reminded that judges do not consider policy questions and that only Parliament can change the law; the task of the judge is wholly analytical – to discover the previously existing law, and to apply it logically to the case before the court.

Not only were judges precluded from considering ‘policy questions’ but the lawmaking powers of the judiciary were scarcely recognised. The judicial function was seen as limited to ‘discovering’ previously existing law and applying it logically to the case before the court. A strict interpretation of the doctrine of precedent inhibited rapid changes of direction and it was accepted that only Parliament could change the law. As Lord Reid (perhaps too modestly) put it, if doctrine had developed in such a way as to cause injustice, appellate judges should, if they could, ‘get the thing back on the rails’, but ‘if it has gone too far we must pin our hopes on Parliament’. Jaffé attributed the different behaviour of English and American judges to constitutional factors; it had always been anticipated that the federal American judge would ‘assume a role in the polity far greater than that played by his confrère in Britain’.