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With reference to relevant case law, compare and contrast the nature of judicial review in england and wales with that in the United States of America and Canada.
In the United States, judges are permitted to review legislation to establish whether it complies with the terms of the Constitution. The written constitution distributes governmental powers to three separate branches, the legislative, executive and judicial and prohibits any overlapping between these branches. It differs fundamentally from the British Constitution in that it divides governmental powers federally between national and state orders of government and prohibits both Congress and the State Legislatures violating rights entrenched in the constitutionally entrenched Bill of Rights. The US situation resembles the British (and Canadian) however, in that the US courts also apply certain maxims of common law and certain principles of statutory construction in determining whether various actions taken under a particular Act of Congress or of a state Legislature fall within the terms of that Act.
In the United Kingdom, the absence of a written constitution with the status of a higher law and the doctrine of parliamentary supremacy prevents judges from exercising this role. They may however, review the manner in which public authorities exercise the powers which have been conferred upon them by the legislature. This power of judicial review may be defined as the jurisdiction of the superior courts to review the acts, decisions and omissions of public authorities so as to establish whether they have exceeded or abused their powers.
The Canadian model falls somewhere in between the United Kingdom and the United States. Canada is a federal state with a written constitution. However, the Constitution's preamble provides that Canada's Constitution is similar in principle to that of the United Kingdom. It is similar to UK law in that the principle of separation of powers does not apply in Canada. On the other hand, the British principle of Legislative Sovereignty does not apply with full force in Canada.
The main difference between the approaches to judicial review in the United Kingdom to that of the United States and Canada is that the North American countries rely on statutory based grounds of judicial review whilst the United Kingdom relies on common law. The four principal legal values associated with the codification of grounds are described as certainty, clarity, democratic legitimacy and rationality. The use of the word codification refers to the Anglo-American technique of consolidating in statutory form a body of law which has been developed by the judiciary.
Numerous philosophies of judicial review are compatible with codification. For example Professor Griffiths argues in favour of codification because he sees it as a mechanism to control the excessive judicial discretion inherent in the common law principles. He proposes to remove the possibility of judicial review on non-statutory grounds such as unreasonableness and irrelevant considerations. This would restrict the available grounds of judicial review to ultra vires in the narrow sense of acting outside the empowering statute, compliance with rules of procedure laid down or under statute in accordance with natural justice and bad faith or corruption.
In contrast Goudie states that instead of questioning the legitimacy of judicial review, there should be greater clarity and accessibility to the law. Codification is therefore a natural extension of the argument that the judiciary themselves should identify the "substantive principles" underpinning the more amorphous of the common law grounds of review. It can be seen as part of the broader intellectual project which seeks rational legal principles to replace the traditional reliance on the empiricism of the common law.
Lord Chief Justice, Lord Woolf, however argues that the loss of flexibility inherent in the common law of judicial review would be too high a price to pay for the greater clarity that comes with codification. Apprehension about placing grounds of judicial review in statutory form is based partly on the problems encountered with the application and interpretation of RSC Ord 53 and s 31 of the Supreme Court Act 1981 which consolidated the procedural aspects of judicial review. These provisions generated large amounts of case law purely concerned with procedural issues, unrelated to the substantive justice of the cases under consideration. The fear would be that codification might lead to similar difficulties.
There have been concerns on the issue of legal certainty which has not been a consistent feature of the common law grounds of review. The complaint has been made in relation to concepts such as unreasonableness and procedural fairness which have been criticised as being both opaque and malleable. An extreme example of legal uncertainty is provided in the case of R v Take over Panel ex p Guinness Plc by the "innominate" ground of review, discerned by Lord Donaldson MR, where something "had gone wrong of a nature and degree which required the intervention of the court." Codification in this instance would provide an opportunity to bring a degree of certainty to the law.
Furthermore, in the United Kingdom the judiciary has scant positive authority for judicial review. The relevant procedural provisions are drafted negatively in terms of detriment to good administration rather than empowering the courts to enforce judge made principles of good administration. The argument from democracy would be that setting the legal principles to be applied in judicial review proceedings should be the function of the legislature. Codification would establish the legitimacy of judicial review in terms of the prevailing constitutional theory of parliamentary sovereignty, providing an authoritative source for judicial activities in this sphere. This might be a more satisfactory approach than that which maintains that Parliament is sovereign because it can always overrule judicial decisions, only to cry foul when this power is exercised.
The key to codifying the present law is that of the specificity with which the grounds of judicial review are set out in the codifying statute. In his restatement of the relevant principles in the GCHQ case Lord Diplock referred to illegality, procedural impropriety, irrationality and (for future development) proportionality. An authorising statute could identify broad principles of this type and no more. The Administrative Procedure Act 1946 in the United States was drafted in this style. At a superficial level it may meet the demand for democratic legitimacy, but in its operation, it depends greatly upon judicial elaboration of the general principles. Arguably the law may be more rational and certain in the United States, but the educative function is not greatly furthered.
The Administrative Procedure Act 1946 is a blend of codification of existing common and statutory law with new legal standards to be enforced by the courts. The language is general setting out the principles of judicial review in s 10 (e) of the Act. However, difficulties arise. Consider the provision directing a court to set aside an administrative decision if unsupported by "substantial evidence". This raises the question as to what constitutes "substantial evidence". The Act provides no guidance although the general principle was already established by judicial decision in Edison Co v NLRB.
As held in ICC v Louisville & NRR the question whether findings of fact had an adequate evidentiary basis had been treated as one of law. There would otherwise be the risk, that where the rights depended upon facts, the decision maker could disregard all rules of evidence and capriciously make findings by administrative fiat. There was substantial evidence in support of a finding of fact when an inference of the existence of the fact could reasonably be drawn, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." As illustrated in Stork Restaurant Inc v Boland if there was such an evidential basis, the reviewing court must uphold the finding, even though it might have reached a different conclusion itself. The substantial evidence test should be of the rationality or reasonableness of a decision not its correctness in the view of the court. The court should not reverse an administrative decision if a reasonable person would have determined the matter in the same way. In essence, this is the same legal test applied by a federal appeal court when reviewing the findings of a jury. In Alletown Mack Sales v NLRB the Supreme Court expressly equated the substantial evidence standard with the power to review the verdict of a jury.
The Attorney General maintained that the 1946 Act effected "a general codification of the substantial evidence rule which, either by statute or judicial rule, has long been applied to the review of Federal administrative action." Codification did not settle the controversy over the appropriate scope of judicial review, rather it set the boundaries for future disputes to take place. Administrative law in the United States remains largely the result of judicial development. Most crucially though, the intensity of review under the general provisions of the Administrative Procedure Act (and equivalent state legislation) depends on the approach and philosophy of the reviewing court which changes over time, even though the statutory language remains the same.
In countries where codification exists the law is not frozen by statutes. An evolutionary interpretation is adopted in the US and Canada to take account of such developments as legitimate expectation, proportionality and fundamental human rights. These concepts have their source outside the statutory framework, in the "safety net" provided by common law. The result is that statutory texts do not provide an accurate guide to the grounds of judicial review, or the details of their application. In England and Wales, principles are still being developed and refined by the judiciary as illustrated by R v Uxbridge Magistrates Court, ex p Adimi (Chouki) where asylum seekers had a legitimate expectation under the UN Convention Relating to the Status of refugees that they would not be prosecuted for possession of false documents on entry into the United Kingdom. Even before the implementation of the Human Rights Act 1998, a greater sensitivity had been shown to issues of fundamental rights. The law will no doubt continue to grow and change and the fact remains that the law of judicial review, even in code jurisdictions, remains mostly judge-made.
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Craig, P.P Administrative Law, Fifth Edition, 2003, Sweet & Maxwell
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