#3584 - Judicial Review - Constitutional Law

INTRODUCTION

• Judicial review sets the legal framework within which decisions affecting the rights, interests and legitimate expectations of individuals are taken.

• Ministers must have sufficient consultation, must not act for an improper purpose, and may have to honour promises. He may also be required to give reasons for his decision.

What judicial review is and is not about:

• Judicial review is concerned with the manner in which the decision was taken, not the decision itself.

• This highlights the difference between ‘appeal’ and ‘review’ – appeal can make a judgement on the content of the decision.

• This approach is seen as proper, as the court is not qualified to comment on the substantive merit of many decisions, but is an expert on the law.

• Another reason for taking this approach is for democratic legitimacy: the court are supposed to act as a check and balance on government decisions. It is quite common for a government decision to be struck down on judicial review, but the same outcome reached by the observance of the correct procedure the next time – the court cannot and should not be able to affect the substantive outcome.

Judicial review and administrative law:

• Administrative law is concerned with the ability of individuals to hold government decisions to account. It is also concerned with the organisation, duties and rules of public authorities.

Judicial review and accountability:

• As discussed, the executive has vast power in the UK. Their growing role has increased the necessity for judicial review.

• Judicial review does not only hold central government to account, but all forms of public bodies.

• Judicial review is just one aspect of overlapping means of holding the executive to account.

Judicial review and conceptions of constitutionalism:

• What should the balance between political and legal accountability be?

• Those who are enthusiastic about judicial review support a minimalist view of the state with the courts limiting their power as independent and neutral arbitrators. Others believe that the government should be left to govern. This heralds judicial review as a safeguard.

• There may be a pragmatic justification for judicial review: ministerial responsibility has shown itself at times to be weak, and judicial review is fundamentally necessary response to that weakness. In this view judicial review is a substitute for political accountability. This was supported by Lord Mustill in the Fire Brigade’s Union case.

• To people who support the pragmatic approach, Parliamentary reform may be enough to fix the problems. But those who view judicial review as a limiting force on the state would support it in spite of reform of Parliament.

• Those who do not support judicial review turn to the small demographic that the judiciary represents and their undemocratic nature as to why they should not be granted such power. Scrutiny of policy should be left to Parliament, which is a democratically elected body of society.

• Note that very few people advocate no judicial review at all.

Judicial review and the multi-layered constitution:

• Not only does judicial review show where power lies between individuals and the government, but also where power lies between different parts of the multi-layered constitution e.g. Holyrood/Westminster, local/central government.

• As the constitution becomes more multi-layered, the need to resolve disputes between branches of government will grow. These disputes over boundaries of power are known as ‘demarcation disputes’.

• This is normal in countries, for example, that have a federalist system, but is relatively unknown to the British courts.

• There are political ways of figuring out these disputes, and again the balance between political and legal methods is a fine one.

• In the Fire Brigade Union case, the court resolved a dispute between the legislative and executive branch of government, but it split the house on whether this was appropriate.

The Constitutional Basis of Judicial Review

The ultra vires doctrine:

• Ministers are not allowed to act outside of their constitutional power – ultra vires. The court looks at the extent of the power the minister has been granted and whether not he has gone beyond that.

• This provides a good justification of judicial review because on this interpretation the courts are merely enforcing the limits of the power afforded to ministers by Parliament.

• In reality, however, the courts limit the power of ministers in a manner beyond what is necessarily clear in statute. When a court rules that the minister has exercised his power in a procedurally unfair manner, there is a recognition that he was entitled to do what he did, just not in the circumstances. Those who support the doctrine would claim that Parliament did not intend to give the minister the power to act unfairly, but this is not articulated in the statute.

• Courts also now review non-statutory powers e.g. those exercised under royal prerogative. Clearly this is not exercising the will of Parliament.

• Also, the fact that the courts have resisted Parliament’s attempts to prevent judicial review (e.g. the ouster clause in Anisminic) shows the constitutional justification on ultra vires falls flat.

The common law theory:

• There various common law rules, such as procedural fairness etc., that are implied in all statutes and provisions. This is a useful interpretation because it gets rid of the problem of parliamentary intention.

• The common law theory also accounts for changes in our approach to judicial review over time, because the common law is always changing.

• But there is an inherent problem because under this theory there is no justification under parliamentary intention and thus is not consistent with parliamentary sovereignty.

• Forsyth says that it is difficult because there can be no grey area if we don’t concern Parliament – Parliament either authorises or does not authorise a power. Even unfair decisions are authorised, and Parliamentary sovereignty means that the court cannot judicially review such decisions.

Defence of the common law theory:

• Laws disagrees with Forsyth – he says that Parliament is indifferent as to how the power is exercised and does not expressly authorise the unfair exercise of power. This gives rise to a ‘vacuum’ which can be filled by common law principles, thus legitimately removing the procedurally unfair exercise while respecting parliamentary sovereignty.

• There is an inherent problem with directly rejecting parliamentary intention, because it is clear that when a court turns to the wording of a statute, we are asking what Parliament intended. Completely rejecting legislative intention is silly.

• This defence requires us to accept that Parliament is agnostic about the rule of law, which it fundamentally should not be.

Development of the ultra vires theory:

• The modified ultra vires is suggested by Elliott and is simply that the ultra vires theory applies, subject to the presumption that Parliament wishes to act within the rule of law (suggested in Vol. 58 CLJ).

• This does not suppose that Parliament intended the detailed content of the procedural fairness principles etc., but these are largely contained within the rule of law idea.

Allan’s more radical view:

• Ultra vires and common law assume Parliament to be sovereign.

• Allan dispenses with parliamentary sovereignty – he says that the common law view works entirely because Parliament is not sovereign.

• This is essentially the ultra vires theory, but Allan doesn’t bother trying to justify constitutional principles through parliamentary intention.

• This whole issue slots into the debate about whether Parliament’s law-making power really is boundless. Cases like Anisminic suggest that Parliament is not sovereign, an idea which has been toyed with recently.

• Similarly, in Jackson, Lord Steyn and Baroness Hale suggested that the court would have a difficult job deciding what to do if Parliament tried to abolish judicial review.

THE GROUNDS OF JUDICIAL REVIEW

Interpreting and applying the statute

• This is about figuring out what the statute has granted in terms of power and whether the decision maker’s proposals are within the wording of the statute. For example, if the building of a ‘major infrastructure project’, is authorised, the court may be asked to decide exactly what that encompasses.

• We ask: does the decision maker have the power to act, what does he have the power to do, and does he have that power in this instance according to the statute?

Meaning of the statute:

• The courts have the final say on this because statutory interpretation is fundamentally a matter of law. While they may not comment on the merits of a decision, they can establish the limits of the power.

• This came up in Anisminic, when the Foreign Compensation Commission ruled that the company could not claim money it was owed because its successor-in-title was not a British national, which precluded claims under the legislation. Anisminic argued that the legislation laid down no such rule and applied for judicial review of the decision. The judges ruled that the Commission could not rule on the limits of its owner power and that was a legal question – their power was statutory. Under the court’s interpretation, there could be a claim.

• This is justifiable because the courts are more competent in matters of the law (although it may be argued that people who use a statutory provision day in day out understand its limits better than the court).

• The courts are also independent and impartial – ‘life tenure and salary protection promote impartiality,...