Thank you for inviting me to give this year’s SWALA lecture. It is a genuine pleasure to be here. I am honoured to be the Liaison Judge for the Administrative Court on the Western Circuit and proud to return to the great city of Bristol.
Lord Diplock once commented that the development of judicial review had been the most significant development in the law of this country in his professional lifetime. That was in the early 1980s. If that was true then it is even more so now. Although judicial review has historic origins going back many centuries, there can be no doubt about two things.
First there has been a remarkable increase in the volume of litigation, particularly in what is now called the Administrative Court, in the last 40 years or so. When the predecessor to the Administrative Court, the Crown Office List, was created in 1980, there were only a few hundred cases brought each year in that jurisdiction. Just a few years earlier, following the recommendations of the Law Commission, the rules relating to the old prerogative orders had been reformed. In 1977, under what was then called the “new” Order 53 of the Rules of the Supreme Court, a procedure known as the application for judicial review was first created.
Today many thousands of cases are started in the Administrative Court every year, even though there has been a dramatic reduction in the number in the last few years, as the majority of immigration judicial review cases are now heard in the Upper Tribunal. Recent figures published by the Ministry of Justice show that, last year (2016), there were 1,832 claims for judicial review brought against the Home Office, which was the government department facing the largest number of such claims, and that was an increase of 18% on the previous year.
In 1980 there were just four High Court judges nominated to sit in the Crown Office List. Today almost all the judges of the Queen’s Bench Division sit in the Administrative Court, as do several judges of the Family and Chancery Divisions. Many others sit in the Administrative Court as additional or deputy High Court judges, including here in Bristol.
The second point is this. It is arguable that the substantive law of judicial review represents the greatest contribution which the common law has made in the last 50 or 60 years. It is still a body of law which remains essentially the creation of the judges. In that sense it is reminiscent of the development of commercial law by the common law courts in the 18th century and the development of the law of negligence in the first half of the 20th Parliament has intervened in this area of law to a limited extent but has done so not so much to amend the substantive content of public law; rather to regulate procedure and remedies and to deal with ancillary matters such as costs. I will return to that later.