Law: Why we must tame the state Leviathan: Greater use of judicial review would help people fight bad decisions by public bodies, Anthony Lester says
By ANTHONY LESTER
WHEN I began practice at the Bar 25 years ago, phrases such as' judicial review of administrative action ', ' public law ', or ' fundamental human rights and freedoms' sounded strange to English judges and lawyers.
They described apparently alien, un-English ideas, taken from Continental or United States systems.
Successive generations of politicians, civil servants, judges and philosophers reared on a meagre intellectual diet of pragmatic utilitarianism and positivism had firmly rejected these ideas as a basis for ensuring constitutional government and citizens' rights.
For them, written constitutions, Bills of Rights, and a special system of administrative law regulating relations between government and the governed were exotic, inedible fruits of the American and French Revolutions.
According to the conventional British wisdom of the middle of the century, our flexible unwritten constitution, our democratic Parliament, the sense of fair play of our permanent civil service, and our vigorous and vigilant free Press were safer and more effective guarantees of personal freedom than a Continental or American-style ' government of judges'.
A quarter of a century later, the conventional wisdom of British mandarins looks complacent, self-serving, ill-informed, and outmoded  especially in the light of the many serious breaches by the United Kingdom of the European Convention on Human Rights.
The powers of British central government are greater than those enjoyed by any other democratic country of comparable size.
Between elections, a government with a sufficient parliamentary majority obedient to its will is absolute and omnipotent.
Because it is not subject to the paramount law of a written constitution, it can make or unmake any law as it chooses.
It can legislate arbitrarily to deprive groups of citizens of their basic rights or freedoms, to enlarge its own powers at the expense of local government, to weaken the ability of the media to inform the public, or to sap judicial independence.
It can do all these things without the possibility of legal challenge in our courts.
The common abuses of public power are not abuses by the sovereign parliament itself.
The more usual examples arise from the misuse by public officials of the powers delegated by Parliament to central or local government, or to the many other bodies exercising administrative powers.
Judicial review is the process by which the courts decide whether public bodies have acted within or beyond those powers.
When judges perform this essential constitutional role, their task is not to usurp the administrator's functions, nor to stultify good government by imposing legalistic requirements upon him.
The court's job is to ensure that the administrator has acted within the rule of law, and has not infringed civil rights and freedoms.
But there are significant handicaps facing the individual who wishes to apply for judicial review of the lawfulness of a public body's decision.
In the first place, unlike normal litigation between private parties, the applicant has to obtain the court's leave at the outset.
This gives the courts a useful power to separate the wheat from the chaff among the pending cases.
So long as there is a full right of appeal against a refusal of leave  a right which the present Government sought, at one stage, to abolish  this handicap is acceptable, even though it places public authorities in a more privileged position than the ordinary litigant.
A less acceptable handicap is the special rule that the application for judicial review must normally be made within only three months from the decision complained of.
It is in the public interest for challenges to the exercise of public powers to be made promptly, so that the administration and citizens alike know what the law is.
But it is unjust that the individual's right of access to the courts should be restricted solely on the ground that there has been delay in making the application.
As the Law Commission recommended in 1976, the test should be whether the granting of relief to an applicant who has delayed would cause substantial prejudice or hardship to any person or would be detrimental to good administration.
What is wholly unacceptable is the denial of justice to the great majority of citizens who are not poor enough to qualify for legal aid but not rich enough to risk the costs of litigating an important public law issue in the High Court, the Court of Appeal, and perhaps the House of Lords.
Successive governments have refused to implement the recommendation of the Evershed Committee in 1953 that the costs of going to law over issues of general public importance should be paid out of public funds.
As a result, many who are genuinely aggrieved by apparently unlawful decisions by government bodies and public officials are effectively denied access to justice.
The number of applications for judicial review has none the less increased significantly over the past decade.
The process is now used in all kinds of contexts: immigration, prisoners' rights, homelessness, the closure of hospitals or schools, access to local government information and, increasingly, commercial cases with a public law dimension.
The decisions of Margaret Thatcher's ministers are struck down by the courts as often as were those of the Wilson or Callaghan administrations.
Ministers and senior civil servants are not amused.
Recently, senior Whitehall officials considered whether it would be feasible to curb judicial review.
After discreet soundings, they prudently abandoned the idea, which would have involved a major encroachment upon judicial independence.
The danger is not that the courts will intervene too much, but too little.
With a burgeoning caseload, too few judges, and increasing delays the courts may be tempted to block the further development of the law and to cut back on the advances already made.
The recent High Court decision in the Rose Theatre case indicates a restrictive approach to what is a ' sufficient interest ' to permit an application for judicial review.
If that approach prevails in the higher courts, it will amount to a major reverse, making it more difficult for the ordinary citizen to complain of unlawful action by a public authority.
In the Lonrho case, the Law Lords in effect decided that the Secretary of State had no duty to give reasons for his decision not to refer the takeover of Harrods by the Al-Fayeds to the Monopolies and Mergers Commission.
The law requires public authorities to be rational in making decisions.
In the absence of reasons, the citizen can not know whether a decision has been rationally, and hence lawfully made.
Every independent committee of experts which has considered the subject has recognised the need to require public authorities to give reasons (the current position in Australia, Israel and the United States, as well as under European Community law).
It is regrettable that the House of Lords has not taken a similarly progressive approach.
This is not to undervalue the change in judicial thinking which has come about in the last 30 years.
From the First World War until the mid-Sixties, administrative  or ' public '  law scarcely existed beyond the pioneering textbooks of Stanley de Smith and Sir William Wade QC.
For 50 years, English judges had been unwilling to nullify government decisions.
In spite of the inexorable increase in the powers of the modern state, the judiciary had remained subservient: as executive-minded as the executive.
It had been a dark age for administrative justice.
Ministers and civil servants were naturally content to let the judges remain asleep.
Fortunately, they woke up.
Under the leadership of Lord Denning and Lord Reid, old common law principles of natural justice were given new content and value.
The judgments in notorious cases which had decided that there could be unfettered administrative discretion were repudiated.
Archaic restrictions on legal remedies were eliminated.
Understandably, the courts are more willing to review a decision because of the way in which it has been reached than because of its actual merits, or lack of them.
To hold that a procedure is unfair involves a less apparent interference with the administration than to hold that the actual decision was unreasonable.
But our system is defective because it lacks coherent principles for reviewing the substance of decisions.
A decision will not be held to be unlawful because it is' unreasonable ' in the ordinary, non-legal sense.
Whether a decision is so unreasonable as to be unlawful depends, in Lord Diplock's words, on whether it is' so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it '.
A test which requires the judge to ask if the decision-maker has taken leave of his senses is too strict and is scarcely judicial.
The European Court of Human Rights and the European Court of Justice (and the Supreme Courts of Canada, India and the United States) apply more sophisticated and properly judicial standards when reviewing the merits of a decision.
They consider whether the aims of the decision-maker conflict with basic rights and freedoms, such as the right to equality, to liberty or to freedom of speech.
They also consider whether the means used are reasonably proportionate to the aims pursued: in European parlance, ' the principle of proportionality '.
It is this gap between ' reasonableness', in the English legal sense, and ' proportionality ' in the European sense, which leaves the United Kingdom particularly vulnerable before the European Court of Human Rights.
Again and again, the European Court has noted the narrowness of the English test for reviewing the merits of official decisions, and has gone on to find a breach of the convention by the UK.
Two appeals are pending against the High Court's failure to adopt proportionality as the appropriate standard for review.
In one case, Dr Colman, a registered medical practitioner was prevented by the Code of Conduct of the General Medical Council, from advertising the nature and availability of his practice in local newspapers.
Dr Colman argues that a blanket ban on all advertising is disproportionate to the council's legitimate aims.
The court said that to import proportionality would ' create a monster that could quickly get out of control and cause widespread disruption of the many administrative processes that might attract its application '.
In the second case, journalists are challenging the Government's ban on the broadcasting of words spoken by Sinn Fein supporters.
They argue that the ban is a disproportionate response to the mischief which the Home Secretary seeks to control, and is in breach of the right to free expression guaranteed by the European Human Rights Convention.
Once again, the Divisional Court refused to apply the criteria used by the European Court of Human Rights.
Whatever the outcome of those particular appeals (in which I should declare my professional interest as representative of both Dr Colman and the journalists) it seems inevitable that English courts, indirectly influenced by Europe, will eventually develop coherent constitutional and legal principles to review the substance of administrative decisions.
The principle of proportionality  do not use a sledgehammer to crack a nut  is straightforward logic.
And in the absence of a modern British Bill of Rights, the European Convention provides a convenient source of Lord Diplock's ' accepted moral standards' where fundamental rights and freedoms are at stake.
In this way we will move towards a fully developed system of public law which will better serve the interests of the state as well as of the citizen.
Law: The other side of the crime: Pat Healy on 10 years of progress by Victim Support, a national charity which has helped 1.5 million people
By PAT HEALY
VICTIM SUPPORT has come a long way from the six-month experiment set up 10 years ago by a group of concerned professionals in Bristol.
Now it is a national charity employing 20 people centrally and administering the work of 400 co-ordinators employed around the country.
Since the national association was formed, 1.5 million people have been referred to Victim Support.
Yesterday the Princess Royal addressed its tenth birthday meeting, attended by representatives of the Home Office, the police, and the probation service.
The organisation took root because the originators of the experiment were shocked at how little the victims of crimes knew about getting assistance, says Helen Reeves, director of Victim Support.
This included compensation, legal advice, financial and housing help, or even simply somebody to talk to.
That is still the case, says Ms Reeves.
' Ten years on, I am quite sure that the biggest issue we have uncovered is the issue of neglect, ' Ms Reeves says.
' Crime is bad enough.
But when you have to face up to the fact that no one wants to know and people are more interested in the apprehension and sentencing of the offender, that for many people is even worse than the original crime. '
Not only are victims denied immediate help, they are subsequently kept in the dark by the police and courts about what is going on.
Unless they are called as witnesses, victims are often not told when a case is coming to court.
' There are tons of leaflets for offenders, but nothing for the witness or the ordinary member of the public, ' says Ms Reeves.
A former probation officer, she blames the way professionals are trained to see the criminal as the main concern, with justice for the victim  if thought about at all  regarded as an optional extra.
So victims feel isolated and ignored and find it difficult to talk about their experiences.
Their reactions can range from anger to irrational guilt, fear and embarrassment.
Their families and friends seldom know how to respond.
' People tend to ask how much they lost and whether or not they were insured.
But it doesn't seem to be an acceptable idea that something like burglary or a street crime can cause quite severe emotional disturbance. '
The worse the violence, the less people want to talk about it.
Families where there has been a murder find that people are more reluctant to talk to them than if they had suffered an ordinary bereavement  sometimes even crossing the street to avoid them.
Victim Support's trained volunteers offer an immediate response when people are still in a state of shock, giving encouragement, support and information.
The organisation's original intention was to refer victims to another professional agency like social services, but that has proved impossible.
Ms Reeves explains: ' With each of the really serious cases  rape, murder, racial harassment  there simply isn't anyone to refer people on to.
So we've had to do a lot of work ourselves, including researching carefully that we are doing something worthwhile. '
This research influences the way volunteers work with victims but it is also passed on by Victim Support to other organisations that might find it useful: it provides an input into every police training course in Britain, and that has led to a potential new area of work.
Former police officers now doing security jobs in shops, banks and offices have begun to ask Victim Support to provide help for employees who have become victims of crime through robberies or other incidents at the workplace.
Next year, Victim Support will be publishing reports on projects covering child victims of crime, families of murder victims, racial harassment and high crime areas.
In January, it will launch a new court service, based on seven Crown courts in England, designed to establish the needs of victims and witnesses attending court.
The organisation is also considering how it should respond to increasing requests for help with victims of domestic violence.
' One of the biggest jobs we have got to do is to pass on what we have learned to the professions, ' says Ms Reeves.
' That certainly means lawyers, judges and magistrates, but also doctors and nurses, employers and school teachers.
I don't see the support of victims of crime as a separate service provided by a small specialist agency but as something which should be much more widely accepted like sickness or bereavement, so that people can get a more sensitive and understanding response from their employers, neighbours, doctors and so on. '
Law: Always take along a friend to sue: Litigation can pay off even in the unlikeliest circumstances.
Stephen Gold explains
By STEPHEN GOLD
WHEN things go wrong you can sue more often than you may think.
Money may not have changed hands.
Someone may have even done you a favour.
It doesn't matter.
As long as you can show that they owed you a legal duty to be careful and have been negligent, damages could come your way.
There are a number of points to bear in mind.
Take up references before giving credit, lending money, letting in tenants, taking on staff.
Ask banks, building societies, former landlords, present and past employers.
If you rely to your detriment on a misleading reference which was given negligently, you should be able to sue the referee.
The subject of a bad reference can sue the referee for libel but has to show the referee was up to no good: spite, ill-will or some improper motive will do.
Take along a prosperous adviser on all shopping sprees, demonstrate a high degree of trust and strong reliance in what they say and you may have unexpected protection should the seller go out of business and the goods fall to pieces.
A 26-year-old woman accountant who knew nothing about the mechanical side of vehicles asked her more knowledgeable friend to find a car for her.
She stipulated that it must never have been involved in an accident.
The friend found one at a garage.
Although he failed to check it had been accident-free, he assured the lady that this was the case.
She bought it.
It had been in an accident and it was worthless.
In May last year the Court of Appeal upheld a judgment against the friend for more than 5,500 damages for negligence because he had owed the accountant a duty of care.
Your conservatory collapses as a result of negligence of the professionals who were engaged by the previous owner to put it up.
You can sue the professionals  builders, architects, surveyors or engineers  by courtesy of the Defective Premises Act 1972, despite the fact that you never had a contract with them yourself.
There are strict time limits: generally, six years from when damage first occurred; where the damage was initially ' latent ' you are given longer  three years from when you could have discovered it, with a longstop of 15 years.
It may also be possible to claim damages against a local authority for negligently failing to ensure that construction work complied with the relevant building regulations.
A solicitor fails to draw up a will within a reasonable time for a client who subsequently dies.
You lose the gift which the will would have made.
You can sue the solicitor for what you would have collected, had he done his job properly, because the law reckons he owed you, as well as his client, a duty of care.
When you want to borrow on a mortgage, the prospective lenders will have the property valued at your expense.
There is no contract between you and the valuer.
But if the valuer is negligent and you buy the property relying on his report, you may still be able to sue him for damages.
This is what the House of Lords decided in two cases last April in spite of an attempt to get the valuers off the hook by a disclaimer which said: ' I accept that the valuer does not warrant anything stated in his report as being accurate...
' Alas, disclaimers may work if, for example, the property being valued is industrial or an expensive house.
Disclaimers may also be used by referees and others to rob you of a claim for damages.
Whoever attempts to hide behind a disclaimer must prove it is fair and reasonable to do so.
But a disclaimer can never take away your rights under the Defective Premises Act 1972 for the collapsing conservatory or prevent anyone being sued for negligence which has caused death or injury.
Have we yet reached the point at which we would be awarded damages against the Meteorological Office because we went camping on the day of an unforecast hurricane?
Or after we followed the duff advice of a legal journalist in a newspaper?
Mercifully, we doubt it!
