Discuss the constitutional justification for judicial review
Judicial review (JR) is a procedure by which, on the application of an individual, the courts may determine whether a public body has acted lawfully. A public body acts unlawfully if it acts in a way which is illegal (failing to apply the law relevant to a decision), irrational (an obviously illogical or manifestly absurd decision) or procedurally unfair (following the wrong procedure for making a decision).
JR can be used to protect the individual by controlling the use of executive power. However it means the unelected judiciary is checking and controlling executive action, which raises questions about democratic accountability. The High Court is exercising
supervisory jurisdiction over public bodies as part of its constitutional function of ensuring that public bodies do not act unlawfully. However, as Parliament has given power to the public authority the court cannot substitute a decision for own view what is
fair and reasonable on the merits (Evans).
Dicey argued that individual liberty was protected solely by private law and that public law limited parliamentary supremacy. He put forward that Parliament gives the executive power and it is the duty of courts to uphold these powers, even if in practice, individual liberty is infringed. However, the modern view is that when Parliament confers power there is implied intent that it is exercised legally, rationally and fairly. So if the implementation infringes an individual's fundamental right then a public interest justification must be shown, for example the Human Rights Act 1998 makes it unlawful for public body to infringe a Convention right.
By reviewing the acts and decisions of public bodies, to determine whether they have exceeded the powers passed to them by Parliament, the courts are arguably upholding the will of Parliament and its supremacy. TRS Allan argues that JR and parliamentary sovereignty have the same moral foundation and both legitimise the exercise of power.
JR can also be criticised as undermining parliamentary supremacy especially the attitude of the courts in interpreting statute (ouster clauses) and in developing grounds for judicial review. However, even since the GCHQ case which dealt with regulation of the Civil Service, some areas remain clearly non-justiciable areas for the courts, for example in Gentle the courts would not consider the government's decision to refuse to hold a public inquiry into the lawfulness under international law of the UK's involvement in the Iraq war.
In Jackson v Attorney-General, Lord Steyn noted the doctrine of parliamentary supremacy was a
construct of the common law, so in extreme circumstances courts can qualify the principle to prevent Parliament from legislating contrary to the Rule of Law. Lord Hope emphasised this saying:
the Rule of Law enforced by the courts is the ultimate controlling factor on which our constitution is based.
Rule of Law
Lord Brown stated:
judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the Rule of Law (Vijayatunga).
The procedural fairness grounds for JR recognise that open and fair hearings and the absence of bias are necessary for the correct application of the law and these are essential components of the Rule of Law. The Rule of Law also has substantive content. The House of Lords quashed a Minister's decision to set a tariff for the custodial term to be served by child murderers because the Minister had relied on a press campaign for an increase in the tariff and therefore the conduct was contrary to the Rule of Law (Venables & Thompson).
Essentially, a breach of the Rule of Law, manifested through breach of one of the more particular principles of judicial review, can lead to annulment of the measure.
Separation of Powers
The Separation of Powers doctrine requires each branch of state to be of equal status so that one can check and balance the powers of another. JR is a system which ensures that the executive does no more than the legislature has empowered it to do. The courts are restricted to a supervisory role in JR because changing an executive decision is beyond their remit. That is why remedies under the Senior Courts Act 1981 are limited to quashing a decision, preventing a decision from being made in the future, or forcing the decision-maker to use the powers he has been given.
Constitutional issues with JR are apparent when looking at ouster clauses, which can be inserted into legislation to attempt to prevent review in legal proceedings. Parliamentary Sovereignty requires the judiciary to uphold the ouster clause and exclude themselves from reviewing the decision in terms of its legality. However, the courts have construed these clauses restrictively, applying the presumption that Parliament does not intend to exclude review by the courts, even when the plain words of the statute suggest otherwise.
In Anisminic, the House of Lords held that an ouster clause may protect a valid decision but not a nullity. The decision is contrary to doctrine Parliamentary Supremacy but arguably upholds the Rule of Law (court's inherent jurisdiction). Another argument is that under the Separation of Powers, as the three branches of State have equal powers, the executive should not be able to deny the judiciary their function.
The judiciary has shown some restraint in relation to ouster clauses which operate after certain time (often 6 weeks). Here the presumption against exclusion not operate and the courts recognise the advantages of prompt claims so the clause can be effective outside the prescribed period (Ostler).
The issue of ouster clauses highlights the tensions between the constitutional doctrines which underpin the unwritten UK constitution.