In this first question, we are going to examine the nature of Judicial Review (JR), its role in the review of administrative action and the constitutional principles which limit that role. We shall see that the nature of Judicial Review has changed over the last five decades because the nature of government itself has changed. Like every other aspect of UK constitutional law, it is constantly evolving.
Technically the intricacies of JR may be complex, but conceptually it is easy to explain the accepted basis for JR. Judicial Review is the process whereby the courts supervise the exercise of power by the executive i.e. their administrative actions. Parliament enacts legislation which allows discretion and this legislative power flows outwards to the various organs of the executive e.g. ministers, local authorities etc (known in the main as ‘public bodies’). It is then used to make decisions which impact on individual citizens and the role of the courts, in theory, is to ensure that the process of decision making stays within the powers delegated and that certain rules of natural justice are observed. It is important to remember that JR is not a review of the facts or merits of a case, but of the process by which the decision was reached, see (Barnett p.706).
However, this accepted nature of JR has been altering because the judiciary believes their constitutional role is expanding. To fully understand the changing role of the courts in reviewing administrative action and the constitutional principals which limit them, one must lay out a conceptual map of the evolution of modern JR.
Prior to Ridge v Baldwin 1964, the courts had been in a state of suspended animation and the review of administrative action by the courts – for political reasons – was excluded. But in this case, the judiciary broke down the artificial barriers and ruled that a sacked policeman could challenge the breaches in procedures used to remove him. This expansive process was continued in Conway v Rimmer 1968.
Initially, the general grounds for these reviews were best described in the seminal GCHQ case as (i) illegality – i.e. understanding correctly and giving effect to the law as it regulates the decision (Parpworth,p.278) e.g. Wheeler v Leicester City Council 1985; taking into account factors which should not have been taken into account.
(ii) Irrationally – defined in GCHQ as a “decision so outrageous in its defiance…of accepted logic that no sensible person who applied his mind to the question to be decided would have arrived at it”, see ex parte Brind 1991 for the high threshold of irrationally necessary.
(iii) procedural impropriety – i.e. “a failure to observe procedural rules laid down in the statue and a failure to observe the basic common law rules of natural justice” (Parpworth,p.295).
N.B these are just convenient ‘conceptual labels’ and they do overlap and intertwine.
However in the GCHQ case, one other ground was also mentioned as a potential ground for review – this was proportionality. Its mention was a clear indication of the changes that were to come. The concept of proportionality implies that the court could review if the means used in achieving the desired decision was proportionate to the result – the judicial equivalent of asking if a sledgehammer was used to crack a nut (Parpworth, p.290). This is important because it suggests that the courts might be willing to move beyond just looking at the process and instead examine the merits of a decision as well. This did not happen immediately and the courts still showed deference to the executive. But, eventually, partly fueled by HRA 1998, the judiciary did expand what they saw as their role in reviewing administrative decisions.
This occurred in various ways over a number of decades. The judiciary has enlarged the definition of “public bodies” to those qusai-governmental organisations which they see as standing in the executive’s shoes; see R v Hampshire Farmers Markets Ltd. 2004. They have also severely limited which decisions they will not review and have moved into sensitive prerogative areas like clemency, see ex parte Bentley 1998. When parliament became concerned about its authority being challenged and attempted to include clauses in the acts it passed which excluded, or ousted, judicial review (Parpworth,p.261), they sidestepped this by pernickety officious interpretation to the point of ignoring them, see Anisminic v FCC 1969. And, most importantly, in the last two decades the judiciary are clearly expanding JR beyond the narrow conceptual confines of enforcing parliamentary supremacy, into a broader role which Bingham described as “balancing the rights of the individual and his need to be treated fairly, and the rights of government at local and national level to do what he has been elected to do” (Slapper,p.279).
There are various constitution principles which should limit the applicability of JR in its various guises. The most accepted theory was that of parliamentary supremacy (Bogdanor,p.391+). The logic of this Diceyan theory is simple: parliament is the supreme body which passes laws but by the very nature of the complexity of modern law, it must delegate some of this power in order to achieve flexibility. JR is thus a process of checking and controlling this discretion so that the citizen has some redress to ensure that the will of parliament is being carried out. As Lord Donaldson said in ex p Hammersmith and Fulham London BC 1991, the judiciary’s role was like that of “referee” and the courts only involved themselves when there appeared to be a “breach of the rules” but that they should not “takeover the position of the players” (Parpworth,p.245).
However, if we are to accept that the nature of JR has altered to the extent that judiciary are now using JR to enforce “the constitutional foundations of a properly democratic state” i.e. some form of fundamental Bill of Rights, as suggested by (Bogadanor,p.392), then we must seek control of this process in the constitutional principle of the Separation Of Powers.
This theory dictates that government is trisected into the legislative, the executive and the judiciary. It reflects the fear that ‘power corrupts and absolutely power corrupts absolutely’. Hence the different branches of the government keep each ‘in line’ by a series of checks and balances. Under the UK constitutional system, this premise is not slavishly followed but the theory is present and this is confirmed by judicial comments in cases such as Dupont Steels Ltd v Sirs 1980. This would thus demand that if the judiciary can control the powers of the other two branches, then the other two branches should equally be able to assert themselves to control a politically active judiciary.
To conclude, it is clear that we are in a time of flux where the judiciary is attempting to expand the nature of JR and stretch the constitutional principles that limit them. In response to this, the executive are ‘removing the gloves’ and actively willing to engage the judiciary by criticism and legislative anticipation of any judicial challenges. One can only hope that some constitutional equilibrium will emerge and that the three constitutional elements will be more willing to engage the gears of government, rather than grind them as seems to be the case now (Slapper, p.281).
In this second question, we are going to consider whether the courts could be guilty of usurping power if they exceed the limits of judicial review. In other words, could the judiciary be acting unconstitutionally in cases such as R(on the application of Q) v Secretary of State for the Home Office 2003 where, apparently at least, the judiciary appeared to be openly thwarting the will of Parliament.
To answer this question, we must explore the role of the judiciary in the UK constitutional system and how that system evolves. There are two potential sides to this argument that need to be examined. The first is that the judges are not usurping power by exceeding the limits of JR. The UK constitutional system is evolutionary and responds to the requirements of the nation. The benefits of an unwritten constitution are the elusive flexibility which allows it to change with the altering needs of the nation. This evolutionary process avoids the rigidity of many systems and has allowed the country to survive without civil war, rebellions, coups etc for centuries. The downside of this system is that evolution sometimes looks like revolution – as happened, for example, with the reform of the House of Lords in the early part of the last century. Likewise, the judiciary may be the vanguard in a new evolutionary phase and the judges may be expanding their role aggressively utilising JR; described by Bogdanor as “shifting the boundaries of administrative law into the constitutional realm by explicitly endorsing a higher order of rights inherent in out constitutional democracy” (Bogdanor, p.393).
In other words, the judges are in the process of developing an unwritten Bill of Rights which they have drawn from a blend of Common Law, their subjective belief of what the values of a democratic society are and the European Convention of Human Rights. The latter was a strong weapon because it finally gave the judiciary the ability – albeit limited – to challenge acts of parliament. The judiciary seems to confirm that this is what is occurring: Lord Bingham was quoted as saying “slowly, the constitutional balance is tiling towards the judiciary. The courts have reacted to the increase in powers claimed by the government in being more active themselves” (Slapper, p.279). It appears their logic is simple: the doctrine of parliamentary supremacy was sufficient for a time when the state had little involvement in our lives. Now, because the State involves itself in every aspect of our lives, there is need for greater control. This argument is powerful and quite compelling as it suggests that the judiciary is simply growing in strength to balance the invasive power the executive/legislative have on our lives. The ‘judiciary’ has for too long been the ‘runt’ of the litter constitutionally and this is just an adjustment to bring their constitutional role into the 21st century. This would suggest they are not usurping power because they themselves are capable of expanding the constitutional limits which constrain them.
The other side of the coin however, suggests that the Judiciary is potentially acting unconstitutionally by usurping power utilising the JR process. This is for two reasons: the first is that they have a democratic deficit. We elect parliament, we do not elect the judges – in fact judges have the most tenuous of democratic credentials, which was not a problem when their role was more readily defined. But now when you have senior judicial figures questioning the government’s democratic mandate it may be a problem. Lord Browne-Wilkinson is quoted as saying that most UK governments lack a true democratic mandate because they never have a real popular majority and as such needed to be controlled. Furthermore he made the claim that “democracy was defective” (Slapper,p.280) and seemed to suggest that the role of judges was to hold the executive accountable to balance this. .
The second problem is that the judiciary could lose their public support by the nature of the cases which they are utilising for this constitutional expansion – if this is what it is. Most of the controversial cases are immigration/security related such as ex parte Adan and Others 2001 where asylum seekers could not be deported back to Germany because it was held not to be a “safe” country as per the Asylum Immigration Act 1996. Also in R(on the application of Q) v Secretary of State for the Home Department 2003, parts of Nationality, Immigration and Asylum Act 2002 was declared unlawful, to which an exasperated Home Secretary replied that he was tired of the situation where “parliament debates issues and judges then overturn them” (Slapper,p.280).
The media exploits such conflicts with jingoistic and xenophobic headlines, but it has clearly propelled the judiciary in the spotlight where they could appear to be thwarting the will of the people and so acting unconstitutionally. The crux of the issue is that if judges are going take more constitutional power, they must retain the confidence of the people. Yet Lord Woolfe suggested that “it behooves the media to learn from this and recognise the dangers posed to confidence in the judicial system” (Slapper,p.285). This is a worrying comment as it suggests that he believes the media should somehow cease questioning their decisions rather that the judiciary trying to adjust to a new role.
In the final analysis, I think we can state that we are in a phase of high constitutional adjustment and while the judges may be accused of usurping power, they are likely in fact merely acting as a bulwark against a stronger and more powerful executive. Lord Irvine said that “It is all about balance. The balance between intense judicial scrutiny and reasonable deference to elected decision makers” (Slapper,p.280). The dangers are however that no matter how good their intentions or balancing act, if the judiciary wish to evolve into a US style Supreme Court which can make important constitutional declarations, then there must be some democratic “anchors” to this system and we must wait and see how these anchors are to be grounded.
Bibliography-References (each reference in the text indicates the source and/or further reading)
Barnett, H, 2004, Constitutional & Administrative Law 5th Edition, Cavendish.
Bogdanor, V, 2004, The British Constitution in the 20th Century, The British Academy.
Fenwick, H, 2004, Public Law and Human Rights 2nd Edition, Cavendish Publishing.
Parpworth, 2006, Constitutional & Administrative Law 4th Edition, Oxford University Press.
Slapper, G, 2006, The English Legal System 6th Edition, Oxford University Press.
Case List (with expanded citations)
Conway v Rimmer 1968 AC 910.
Dupont Steels Ltd v Sirs 1980 IRLR 112
ex parte Adan and Others 2001 – R v SS for the Home Department ex p Adan and others 2001 2 WLR 143,HL
ex parte Bentley 1998, The Times 31st July
ex parte Brind 1991 – R v S.S for the Home Department ex parte Brind 1 AC696
ex parte Hammersmith and Fulham London BC 1991 R v Secretary of State for the Environment, ex p Hammersmith and Fulham London Borough Council 1991
GCHQ – Council of Civil Service Unions v Minister for the Civil Service 1985 AC 374
R v Hampshire Farmers Markets Ltd. 2004 R (Beer t/a Hammer trout Farm) v Hampshire Farmers Market Led (Parpworth,p.256)
R (on the application of Q) v Secretary of State for the Home Office 2003 2 ALL ER 905
Ridge v Baldwin 1964 AC 40
Wheeler v Leicester City Council 1985 AC 1054
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