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Published: Fri, 02 Feb 2018
Judicial Power Rights
Discuss the constitutional significance of the process of Judicial Review of administrative action in the UK.
White rabbit: Your Majesty, members of the jury, loyal subjects… and the King… the prisoner at the bar stands accused of enticing Her Majesty, the Queen of Hearts, into a game of croquet, thereby and with malice of forethought, molesting, tormenting, and otherwise annoying our beloved…
Queen of Hearts: Never mind all that! Get to the part where I lose my temper.
White Rabbit: …thereby causing the Queen to lose her temper.
(An excerpt from ‘Alice in Wonderland’ by Lewis Carroll)
It is possible to discern a pattern where the Queen of Hearts is equivalent to the modern Executive with its unfettered discretion to use and abuse its powers, lock up and detain people at its own will, apply legislation in an oppressive manner and the list goes on. Who will then protect the ordinary citizen from suffering the wrath of the angry Queen of Hearts? Who or what will give them a chance to have their cases reconsidered and to achieve procedural and substantive justice? The remedy of Judicial Review which has become more of an eye sore to the Executive in the yester decades as the Judiciary continues to “check and balance” an unruly, highly political Executive particularly since the new Constitutional Reform Act, 2005 and the not so recent Human Rights Act, 1998 which seems to have absorbed in the veins of judicial activism and recent case law with much ease.
This essay explores the process of judicial review of administrative action in the United Kingdom in the context of its constitutional significance. It discusses the growing balance of power which is shifting in favour of the courts in their “Judicial Activism” since the 1960’s which has often alarmed the members of the Executive with many academic commentators defending this as inevitable in the face of the expanding role of the State and increasingly draconian legislation (especially in the area of Immigration and Terrorism law post 9/11 and 7/7). Although there have been attempts to circumvent the scope and effect of the doctrine of judicial review in the past (Anisminic Ltd. v. Foreign Compensation Commission), the most recent has been the notorious “ouster” clause in the Asylum and Immigration (Treatment of Claimants) Bill which has provoked an outcry from the human rights lobby and the constitutional law experts. Also significant is the role of the Human Rights Act, 1998 which has, to some extent, resolved the debate whether judicial review should be based on common law or statute.
Power must be Checked by Power
The constitutional basis of judicial review lies in the concept of “checks and balances” whereby the actions of the Executive will be “checked” by the Judiciary to see whether they have gone beyond their “power” to prevent the arbitrary abuse of such power. Traditionally, the English approach to a systematisation of judicial review was curative and similar to the development of the prerogative writs which developed as personal requests by an individual to the King for the redressal of a wrong suffered by another individual. The United Kingdom has no separate system of administrative courts (and the concept has never found favour with the system either since the abolition of infamous prerogative Star Chamber). Thus the present administrative review system can be described as a body that combines both a substantive body of law containing grounds of review and a large number of administrative tribunals dealing with statutory appeals from decisions of public bodies.
The subject of judicial review of administrative action therefore requires a discussion of the role of the courts in devising and applying constraints to the exercise of discretion. The constitutional significance of this all pertains to a critical discussion of the role of the Judiciary and the many forms the doctrine of the Separation of Powers takes. The doctrine of the Separation of Powers has its roots back in the seventeenth century when John Locke wrote:
“It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage“.
This doctrine was further developed by Montesquieu who argued for the importance of each institution in carrying out checks and balances on the other (hence the adage “power must be checked by power”). In this line, Gilligan has offered an analysis which will explain to some extent the theme this essay takes.
“Judicial review is most justifiable not when it is directed at substantive policy choices that occur in exercising discretion, but rather when it draws on values which form part of the constitutional framework within which discretion occurs. The justification for review lies in the assertion of certain values as sufficiently important to be constraints on the exercise of discretion”
Identifying the constitutional basis of judicial review
Identifying the constitutional significance and basis of judicial review involves an analysis of the constitutional principles which form the pith and substance of the British Constitution. The British Constitution is largely unwritten to date with the exception of the new review powers for the courts introduced by the Human Rights Act, 1998. It can be said the Judiciary has acted as a jealous guardian against external interference to any attempt to codify this Constitution. This can be seen from the recent refusal to ratify the “European Constitution” which would mean entrenching judicial review and human rights into a single document like the American and German contemporaries. Furthermore, this pragmatic approach to human rights and review of administrative action has always been based on the conceptions of the Rule of Law formulated by the constitutional lawyer, A. V. Dicey, whose conceptions of the Rule of Law stress on the control of wide discretionary powers of the Executive.
The constitutional basis of the supervisory function of the courts has been a subject of vigorous debate as the phenomena of judicial review has grown in its prominence and magnitude in administrative litigation over the past many decades. The main principle upon which these actions for judicial review have been based has been the ultra vires rule which has been widely criticised due to its assumption that “judicial review was legitimated on the ground that the courts were applying the intent of the legislature. The courts’ function was to police the boundaries stipulated by Parliament”. Other writers have argued the principle of illegality (within judicial review) derives its legitimacy from the common law. Smith (1995) argues the new types of judicial controls that arise owe their roots to the common law particularly in regards to the existing judicial attitudes towards fundamental rights, legitimate expectations and the concept of proportionality. Proponents of the “pure ultra vires” justification for judicial review argue judicial review supervises not only parliamentary bodies but also the other non-statutory regulatory bodies which are self-regulated as well as prerogative powers. It is argued that since these powers have no “visible means of legal (i.e. statutory) support”, legislative intent is irrelevant to their implementation.
Many academics have attempted to reconcile the ultra vires and common law justifications of judicial review by attempting a “modified ultra vires” theory or the “modified common law” theory which instead of assigning undue dominance to the Judiciary and endorsing judicial activism or judicial review, it accepts that even though judges tend to apply and formulate the principles of good administration independent of specific parliamentary intent, all this is done in line with the general intention of the Parliament.
The Human Rights Act and Recent Developments
The recently promulgated Human Rights Act, 1998 which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right (Section 6(2)) would certainly subscribe to the pure ultra vires view discussed above. This Act provides a “statutory basis” to judicial review of administrative action. Moreover, the Human Rights Act, 1998 has played a significant role in strengthening the Judiciary’s stance against unwarranted access by the public authorities as well as helping them declare any law of the United Kingdom incompatible with the Human Rights Act, 1998.
However, even though the role of Human Rights Act, 1998 has been lauded by many circles in the civil and judicial society, some academics have rightly pointed out they are sceptical to its mechanisms of the locus standi for review being available solely to the victim of the violation by the public authority. Even then, the Act has done little to appease the Executive as it is increasingly feeling the pressure of this new found judicial activism and is finding it hard to shield itself through the use of the doctrine of “Parliamentary Sovereignty”. An interesting example is the recent Jackson case where Lord Hope went on to say . . . “Gradually, but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”
The case involved a challenge to the validity of the Hunting Act 2004, which makes it an offence to hunt most wild mammals with dogs. There was a marked tension between the House of Commons and the House of Lords here as the Act had been passed without the approval of the House of Lords. This decision has been said to be a landmark in the history of judicial review as commentators are already suggesting a shift in the equation between Parliamentary Sovereignty and the Rule of Law. It is being debated whether the courts (post the Human Rights Act, 1998) possess the authority to review and even to set aside a parliamentary statute which offends the Rule of Law or for that matter any other fundamental principle integral to a contemporary conception of constitutional democracy.
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 which has been dubbed as “oppressive” by academics and the Judiciary alike 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. Alarmingly these pieces of legislation are also notorious for their clever circumvention of the role of the Judiciary in 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. Although this view has often offended the notions of Parliamentary Sovereignty, as will be discussed below, the courts have continued their struggle against executive action that is oppressive and tyrannical. This is only possible through the concept of Separation of Powers which guarantees all three organs of the state to have sufficient independence and control upon each others actions which might cause an overall abuse of power.
It becomes clear, however, as one is able to sift through a wealth of recent case law, that the courts have fiercely struggled to compromise any chances of a better relationship with the Executive in an effort to uphold the constitutional guarantees available to the general public. In 2002, the House of Lords ruled in Anderson under the Human Rights Act, 1998 and with respect to the doctrine of the Rule of Law the Home Secretary’s traditional right of setting the tariff for prisoners convicted of murder could be no longer allowed to continue as this was an example of an arbitrary and unchecked exercise of power by a member of the Executive. In the case of Director of Public Prosecutions of Jamaica v Mollison Lord Bingham described the effective mechanisms of judicial review upholding the notions of Rule of Law and the Separation of Powers as ‘a characteristic feature of democracies’.
The Rule of Law has indeed 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. The Courts have used, and will continue to use the vehicle of judicial review to stop the unruly Executive from trampling the rights of citizens. An Executive wary of the outcomes of its actions and accountable for any breach of the powers allocated to it will think twice before it takes any actions which violate the democratic ideals of the British Constitution.
This essay has discussed the constitutional significance of judicial review which essentially traces its birth and evolution within the three-tier principles upon which the British Constitution prides itself: the Rule of Law, Separation of Powers and Parliamentary Sovereignty. This has been analysed in terms of the ongoing tussle between the administration and the increasing willingness of the Judiciary to review new grounds of administrative action. For example, in the decisions of Anderson and Mollison it can be seen how judicial review has guaranteed the review of administrative power based upon the Rule of Law. Accordingly, judicial review of administrative action is the constitutional fundamental of the British system of government and a guarantee that the “Queen of Hearts” will be cautious in losing her temper and pronouncing unconstitutional verdicts!
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Table of Statutes
- Human Rights Act 1998
- Hunting Act 2004
- Parliament Acts of 1911 and 1949
- Asylum and Immigration (Treatment of Claimants etc.) Act 2004
- Nationality, Immigration and Asylum Act 2002
- Constitutional Reform Act 2005
Table of Cases
- R. v Secretary, of State for the Home Department Ex p. Leech (No.2)  Q.B. 198.
- R. v Lord Chancellor Ex p. Witham  Q.B. 575.
- R. (Anufrijeva) v Secretary of State for the Home Department  UKHL 36;  1 A.C. 604.
- A v Secretary of the State for the Home Department  UKHL 56;  2 A.C. 68.
- R. (on the application of Jackson) v Attorney General  UKHL 56; (2005)
- Anisminic Ltd. v. Foreign Compensation Commission  2 AC 147
- R v Anderson (2002) UKHL 46;  1 A.C. 837.
- Director of Public Prosecutions of Jamaica v Mollison  UKPC 6;  2 A.C. 411 at .
- R. v Lord Chancellor Ex p. Witham  Q.B. 575
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