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The idea of constitutionalism, is in conflict with the idea of parliamentary sovereignty. This tension is particularly apparent where constitutionalism is safeguarded through judicial review. One governmental body, unelected by the people, tells an elected body that its will is incompatible with fundamental aspirations of the people. This is at the root of the difficulty, Why would we still have judicial review in a political world ? The core defence of judicial review is offered by Alexander Hamilton(1961) in the Federalist Papers. It is worth noting that Hamilton primarily envisioned the institution of judicial review as a useful check on the temporary missteps of legislative majorities. The judiciary is not positioning itself against permanent majorities; it is not trying to tell legislative majorities or the people that they cannot have what they are convinced that they want. Rather, in particular moments when the people have lost their heads, the courts might step in and offer some corrections and appeal to the more sober sense of the people. Judicial review is an essential safeguard to maintain the standards of law and is also needed to protect democracy in difficult times. Primarily the Judiciary tries to correct badly drafted legislation and challenge the legislators when their action might result in in justice to the people.
The UK constitution is often described as an ‘unwritten constitution’, but it is best described as ‘partly written and wholly uncodified’ (Budge et al, 1998). It is derived from a number of sources. Its principal source is statute law, i.e., laws passed by the UK Parliament. This gives the parliament the absolute power to establish laws in the whole of UK. However, the recent emergence of judicial reviews has considerably shaken the system off its long-established norm of parliamentary sovereignty. With the process of judicial review, the courts are now given the capacity to deem whether a particular legislation ratified by the parliament is lawful or not. Judicial review allows individuals, businesses, and other groups to challenge the lawfulness of decisions made by Ministers, Government Departments, local authorities and other public bodies. The main grounds of review are that the decision maker has acted outside the scope of his statutory powers, that the decision was made using an unfair procedure, or that the decision was an unreasonable one. Judicial review of executive action raises important questions about the separation of powers and, where administrative powers are conferred by statute, fundamental questions arise concerning the relationship between parliamentary sovereignty and the rule of law.
Public law is generally concentrated on the control of the Government. Wade and Forsyth(2004) have indicated that the primary purpose of administrative law is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok. This control is sometimes affected by use of the courts and judicial review provides one (of a number) of legal controls on administrative actions.
De Smith, Woolf and Jowell(1999) argue that “judicial review should be seen in the context of the general administrative system where different mechanisms are employed to hold public bodies accountable.” They suggest that these mechanisms also include, inter alia, the use of ombudsmen, tribunals, internal reviews and action by Members of Parliament, the National Audit office and regulatory agencies.
Paul Craig(2003) has explained the conceptual justification for judicial intervention in this way: It is readily apparent that the execution of legislation may require the grant of discretionary power to a minister or an agency. Parliament may not be able to foresee all the eventualities and flexibility may be required to implement the legislation. The legislature will of necessity grant power subject to conditions .Herein lies the modern conceptual justification for judicial intervention. It was designed to ensure that those to whom such grants of power were made did not transgress the sovereign will of Parliament.
Decisions of public authorities can be challenged in the courts by way of “judicial review” a process by which legislative and executive decisions are reviewed by judges to ensure that they are lawful. The purpose of judicial review is to ensure that public authorities don’t go beyond the powers given to them by parliament and that they don’t abuse those powers. Judicial review, in its simplest sense, is described as a means of court’s control of the exercise of governmental power. (2006) . Judicial review is a High Court procedure for challenging administrative actions. Judicial review is not concerned with the ‘merits’ of a decision or whether the public body has made the ‘right’ decision. The only question before the court is whether the public body has acted unlawfully. In particular, it is not the task of the courts to substitute its judgement for that of the decision maker. The courts would traditionally only intervene where a public body had used a power for a purpose not allowed by the legislation (acting ultra vires) or in circumstances where when using its powers, the body has acted in a manner that was obviously unreasonable or irrational. In cases where there is a real unfairness, the courts may now be willing to intervene where the public body has made a serious factual error in reaching its decision.
Lately, there have been significant incursions into parliamentary rule. There have been two chief mechanisms, one international and the other domestic. The first mechanism is the integration of Britain into the Council of Europe and the European Union (EU), which has meant that supranational law courts are now regularly reviewing British legislation for compatibility with international obligations. More recently, the incorporation of the European Convention of Human Rights into United Kingdom domestic law by the Human Rights Act 1998 has led to greater involvement of courts in considering the “constitutionality” of parliamentary statutes (and administrative actions) compatibility with Convention requirements.
The preamble to the Human Rights Act 1998 indicates that it will “give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights” Prior to the implementation of the Human Rights Act, while the judiciary would try to interpret legislation in line with Convention obligations, the limits of statutory interpretation could be reached in cases where there was a clear cut conflict between the wording of the domestic law and the requirements of the Convention. The constitutional position of the Human Rights Act 1998 and the impact that it has had on the Administrative Court is a matter of some debate. Fordham(2008) has claimed that the Human Rights Act is a constitutional text, which cements and enhances the Court’s role in protecting against post 2.10.00 violations by public authorities of the codified Convention rights, and which has changed the face of judicial review.
Gordon(1999) has gone further than this, stating that: The Human Rights Act provides a new constitutional basis for the court’s function in judicial review. No longer is the court searching for a solution to the fictional question of what Parliament actually intended and in reviewing the power found to have been conferred; from 2 October 2000, it is engaged in the exercise of seeking to protect designated Convention rights. Section 3 of the Human Rights Act 1998, in effect, permits judicial review of Acts of Parliament.
The second mechanism is the growth of domestic judicial review as shown by an expanding body of administrative law. According to many observers, United Kingdom (UK) courts are exhibiting growing activism in checking the government, especially since the 1980s.This administrative law jurisprudence has grown in recent years.
This struggle between the Executive and the Judiciary is well illustrated by the recent promulgation of the Asylum and Immigration (Treatment of Claimants etc.) Act, 2004 through its Section 26 inserts a new s.103A into the Nationality, Immigration and Asylum Act, 2002. This provision has the effect of destroying the remedy of Judicial Review by replacing immigration adjudicators and tribunals with a single-tier appeal tribunal. Consequently, the ordinary courts will have no basis of procedural or substantive review here but in limited cases like that of bad faith and error of law. The danger is that once the Immigration department is able to have a free hand to what has been termed as “immunisation of manifest illegality” it will preclude foreigners from their rights of seeking redress for perceived wrongs. This is not only a threat to the power of the Judiciary to challenge and curb the arbitrary power of the Executive, but also a threat to the constitutional guarantees of the Rule of Law and Separation of Powers as the guardians of civil liberties and human rights.
A similar trend is emerging with other pieces of legislation post 9/11 and 7/7 in the form of the Regulation of Investigatory Powers (Communications Data) Order 2003, Regulation of Investigatory Powers Act, 2000 and the Anti-Terrorism Act, 2001 which make privacy and civil liberties of terror suspects a lost concept as the members of the Executive are allowed a free hand in crossing all boundaries in the investigation of terrorism and money laundering. These pieces of legislation reduce the role of the Judiciary by curtailing any appeal to the judicial platforms regarding these unfair practices which are now mandated by the writ of the law. It is possible to see here why the judicial review is then constitutionally significant. It is a guardian of the Rule of Law to guarantee that law which is unfair and a threat to human rights and civil liberties will not be allowed to suppress the people of a democratic society.
The Rule of Law has played a large role in the broadening of the scope of judicial review as initially, judicial review was limited to ensuring only procedural fairness. In the case of R. v Lord Chancellor Ex p. Witham it was held the Lord Chancellor’s imposition of substantial court costs were an unlawful impediment to access to justice and his action was accordingly declared null and void. In the case of Anufrijeva during judicial review, the House of Lords had to decide whether the withdrawal of income support by an internal note on a departmental file from a date before notification of the decision was lawful. This was held to be unlawful based on the constitutional principle of Rule of Law that an individual has a right to know of a decision before their rights can be adversely affected. In the case of Belmarsh which is also an important case for judicial review an overwhelming majority of the House of Lords decided that the indefinite detention of foreigners, on the ground of terrorism suspicion was a breach of the European Convention on Human Rights. All these cases are a testament to the constitutional significance of judicial review.
What is at issue in all of these concerns is the entire business of good government. Two central concerns are democracy and human rights. The fundamental question about democracy does not stop at the legislative and executive branches of government. If we are serious about democracy then it too must play a role in the judicial branch. Judicial review may act as a filter by providing a chance for the lawmaking community to express second-thoughts or critical reflection concerning legislation and other governmental conduct. Ultimately, however, democracy is committed to the proposition that the electorate after refining its judgement deliberatively through its representatives and other institutional procedures is the final arbiter of constitutional meaning.
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