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Published: Fri, 02 Feb 2018
Is A Judicial Review An Effective Mechanism
Judicial review safeguards against abusive acts by a public authority and helps maintain the Rule of Law
Today’s challenge is to maintain the rule of law, particularly safeguards against abuse of power, and the commitment of the international community to human rights, including the fundamental rights which preserve human dignity, while also preserving the capacity to respond to national and international security concerns
The rule of law can only be secured with an independent judiciary and independent legal profession.
Without the reasons being given for a decision, how then is judicial review to be an effective mechanism?
The answer is, as demonstrated by the judgments of the Court of Appeal, that it cannot be effective. If reasons are not given then there is a de facto denial of judicial review. Swinton-Thomas LJ summed this up: “…in the absence of reasons, it is impossible to make any judgement about this….” There is also a House of Lords dictum to support this. Lord Mustill thought “it important that there shall be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary be disclosed”( Doody  1 AC 531, 565G-H).
Administrators can therefore easily make their decisions immune from judicial review, unless they are under a specific duty to give reasons. Such a conclusion is clearly contrary to the requirements of the rule of law. The rule of law demands that all public decisions have lawful authority. The courts, under the separation of powers, are the only forum to decide upon issues of law. If to refuse to give reasons effectively means that the supervisory jurisdiction of the courts is ousted, then the only conclusion must be that the very nature of judicial review requires reason giving, for any other conclusion would be contrary to the rule of law. Whilst decisions holding that the royal prerogative is in principle justiciable, such as R v Secretary of State for the Home Department, ex parte Bentley  QB 349, are to be welcomed, it seems perverse to allow potentially more administrative decisions taken under the far greater number of statutory and common law powers to be excluded from judicial review by the decision-maker simply refusing to give reasons. Indeed to do so is to allow capricious, illegal and irrational decisions to be immune from review.
There are three Prerogative Orders:
Certiorari calls a case up from an inferior court to a superior one to ensure justice is done.
Prohibition prevents an inferior court from hearing a case it does not have the power to listen to.
Mandamus orders an inferior court to carry out its duties.
How relevant to 21st British Politics and Society is the Rule of Law?
Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever. They claim that central government has sought and seeks to undermine the three basic tenets of Dicey’s code with an increase in things such as:
the Official Secrets Act
the attempt to remove an individual’s right to trial by jury
the activities of the Secret Service (especially after September 11th)
removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997)
The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War
However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britain’s secret services (though they may not know if they are being investigated or not!) It is agreed with some justification that a modern society needs bodies like MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations.
Also there are bodies that theoretically oversee the activities of government agencies and their work – such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.
The rule of law maybe defined in brief as a doctrine that no individual, however powerful is above the law. In principle Rule of Law had a significant influence on attempts to restrain the arbitrary use of power by rulers and the growth of legally enforced Human Rights in many western countries. It is often used as a justification for separately legislative from judicial power, this can be clearly seen within the government structure of the UK. The Government in the UK is highly centralised and carried out within a written state – Government power is not confined by a written constitution or bill of rights. It is said to be both accountable and responsible. Responsible Government is carried out according to constitutional conventions, internal, obligations from membership to the European community and the rule of law
Judicial review is the principal means by which people can challenge the legality of
action taken by public authorities. As such it is an important tool for providing redress
and holding government to account, but does it help to improve services or does it
interfere with local authorities and detract from what they should be doing?
The rule of law demands that a public authority only make a decision or adopt a course of conduct if it can find positive law to justify it (see the comments of Lord Atkin, giving the opinion of the Privy Council, in Eshugbayi Eleko v Officer Administering the Government of Nigeria  AC 662, 670). Laws J ( 1 All ER 513, 524j) put the point well:
“It is in this sense that it [a public authority] has no rights of its own, no axe to grind beyond its public responsibility: a responsibility which defines its purpose and justifies its existence. Under our law, this is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them.”
The law of judicial review has developed judicially created doctrines to ensure that public authorities keep within the law, and thus safeguarding the efficacy of the rule of law
The rule of law requires that public decisions be susceptible to judicial review, for this end reasons must generally be given if judicial review is to be effective. Fairness cannot form the basis of an obligation for reasons to be disclosed generally. It is therefore wholly inadequate to ensure the efficacy of the rule of law. The inexorable logic within the decision leads to the opposite conclusion reached by the court: a duty to give reasons must be generally enforced and that fairness is incapable of achieving this. With the present position having proved to be untenable, what can form the basis for a general duty to give reasons
Rule of Law is founded and flourishes on the
supremacy of law facilitated by a system of governance that is democratic, participative
and transparent and, importantly, supported by a strong and independent judiciary
The classical formulation of the supremacy of the Rule of Law is included in Article 4 of
4. Right of individuals to be dealt with in accordance with law, etc. (1) To
enjoy the protection of law and to be treated in accordance with law is the
inalienable right of every citizen, wherever he may be, and of every other person
for the time being within Pakistan.
(2) In particular—
(a) no action detrimental to the life, liberty, body, reputation or property of
any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which
is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not
require him to do.
rule of law may mean different things to different stakeholders. Thus, for individuals, as
noted earlier, the important safeguards against abuse, oppression and injustices are to
be found in the comprehensive catalogue of fundamental rights enshrined in the
Constitution. For the Provinces, on the other hand, the rule of law would require that the
fora established in the Constitution to safeguard and protect provincial interests such as
the National Finance Commission (Article 160), National Economic Council (Article
156), and the Council of Common Interests (Articles 153 and 154), be activated and
enabled to function in accordance with their Constitutional mandates
It follows that for
the Provinces, important stakeholders in the Constitution, rule of law would mean
facilitating their rights to natural resources as per Article 158 and their voice in economic
and financial planning in the Council of Common Interests and the National Finance
Constitutional governance also requires each organ and authority of the State and each
person performing functions on behalf of an organ or authority of the State to act in
accordance with the Principles of Policy laid down in Chapter 2 of Part II of the
Constitution. Thus, the promotion of the social and economic being of the people,
promotion of social justice and eradication of social evils, the participation of women in
all spheres of national life, the protection of minorities, the removal of illiteracy, ensuring
inexpensive and expeditious justice, provision of just and humane working conditions,
provision of basic amenities of life including food, housing, education and medical
services, promotion of the education and economic interests of backward classes or
areas and decentralision of the Government are important guidelines for all national
decisions and decision makers.
But that there are abuses of the system is also beyond argument. This Bill deals with abuse of the system. Abuse by those who come here claiming to be asylum seekers, but who aren’t. Abuse of multiple layers of appeal and judicial review, and which do not enable an effective process of determination. And abuse of the tax-payer. Last and not least, an abuse of the system as it impacts on genuine applicants.
What i have included in my essay so far:
-Stated how reference was made to the rule of law in the Constitutional Reform Act 2005, which demonstrates it’s significance in the UK framework, also pointed out s17 which concerned the oath of the lord chancellor.
– Pointed out that in neither context was the rule of law given a definition and have proceed to explain the probable reasons behind this and how lack of a statutory definition does not effect it’s significance.
-Included academics views on how the rule of law may have become meaningless due to general overuse
– Included Lord Woolf’s affirmation of the rule of law in the uk,
“One of the most important of the judiciary’s responsibilities is to uphold the rule of law, since it is the rule of law which prevents the government of the day from abusing it’s powers”
any idea how i could expand on this?
-Noted that although there is no single definition the uk tends to lean towards Dicey’s interpretation, then gone on to outline the interpretation and the various critique associated with it
– concluded that diceys interpretation is highly significant in the UK however certain areas of the interpretation have been ignored.
– Described what parliamentary supremacy is
The above argument supports the existence of a general duty to furnish reasons. Other arguments have been made. Administrative self-regulation and good public relations between administrators and the governed are both encouraged by the provision of reasons. These and other arguments, whilst persuasive, cannot found a duty to give reasons. They are consequences of that duty. Also arguments based upon the instrumental and non-instrumental objectives of process rights (see Craig 1994, p 311) are not directly on point as the basis of this general duty to give reasons is on substance, not form.
Whilst Wednesbury unreasonableness is the only ground of substantive review of administrative action, other principles of substantive review, if adopted, would also require reasons to be given in order that such principles be capable of being applied. This can be seen in the tentative movement towards a principle of consistency. In R v LB of Tower Hamlets ex parte Mohab Ali (1993) 25 HLR 218, 228, Rose LJ held that inconsistent application of certain criteria between people in the same position would be unlawful if not justified. Also the principle of proportionality, if adopted, would also require the provision of reasons to enable the court to determine whether the balance of interests was proportionate.
The efficacy of judicial review as a mechanism of controlling the legality of administrative action is dependant upon the establishment of a general obligation of providing reasons. Once this is accepted then the way is clear for the establishment of such a duty on the above lines. It is unfortunate then that the courts persist with deciding cases on an essentially ad hoc approach based upon fairness, as the Court of Appeal has done so in the present case.
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