Assessing Judicial Review in the UK Constitution

Introduction

The UK is governed by the rule of law. Parliament is the sovereignty. The law applies equally to everyone. The courts have little power over the constitution (Cooper, 2018). Courts, however, assume the role of a guide over the functioning of the executive. In this light, this essay will assess the formulation of judicial review under the constitution.

This essay will examine how and whether or not judicial review is used to protect against the use of executive power considering that the executive implements the will of the legislature. It will examine whether the protection afforded is sufficient against the executive power.

Judicial review as outlined in the UK constitution

The Constitutional Reform Act 2005 recognised the rule of law where its Section 1 states that this Act does not adversely affect the “constitutional principle of the rule of law”.

Judicial review is the legal procedure that allows challenging decisions of a public body. The Courts can review such decisions to determine whether or not the decision is legally flawed (Government Legal Departmemt, 2018).

The UK system of judicial review could be treated as having the procedural as well as substantive elements (Craig, 2007, p.101). It is treated as ‘thick’ or ‘substantive’ understanding of the rule of law, which judges the form and content of the law requiring recognition of the substantive rights (Bingham, 2010, pp.66-67).

Judicial review is stipulated in the Civil Procedural Rules, 1.1 that provides for the overriding objective of the rules that courts must deal with case in a just manner and that, under Rule 1.2, must give effect to this overriding objective. The provision of overriding objective is also provided under Rule 1.1 of the Criminal Procedure Rules 2020 and that of The Family Procedure Rules 2010 also.

In R. (Evans) v Attorney General ([2015] UKSC 21; [2015] 1 A.C. 1787, at 115), Lord Neuberger has aptly viewed judicial review power as protection by the court of political rights of individuals from the arbitrary interference by the state. The decision of the court must be final and binding and must not be subjected to any executive override.

This extent of such review appears to be limited in nature as reflected in the lecture by Lord Sumption on his position on the boundaries between judicial and political decision-making (Sumption, 2011). According to him, courts have minimally-legitimate power to breach the boundary through policy decisions that are based on merit, but preserves Parliamentary supremacy and the politically accountable ministers (Murkens, 2018). In case of individual rights, Sumption (2011) recognises court’s review power that could act as supervision of individual rights (Sumption, 2011, p.309). In policy making, he finds parliamentary scrutiny as perfectly adequate. In regard to political questions, he does not find the court to have any legitimate basis in public consent. This is based on the view that the judges are not accountable to the public for judicial decisions (Sumption, 2011, pp.312-13).

In the light of the extent of judicial review power against the competing interest of Parliament sovereignty, political interests and individual rights, the question is whether or not the court could afford adequate protection of rule of law by abiding to the separation of power doctrine or by overreaching executive power/

Whether judicial review enables protection and whether the protection is sufficient?

3.1. System of checks and balance. The ruling in the above case is a representation of the rule of law that relies on the doctrine separation of power. In regard to the purpose of the power of judicial review, there is a check and balance approach followed by the organs of the government. In specific regard to the question in hand, the partial version of the separation of power applies. Stanton & Prescott (2020) observe that partial version is where there is an overlap between the judiciary and the executive, which uplifts the principle of rule of law. Such an overlap represents the system of checks and balances, which allows permitted intrusion (Stanton & Prescott, 2020, p.66).

3.2. Sufficient interest. The answer to whether judicial review offers protection against executive power is yes. However, the decision of the executive cannot be challenged unless there is a standing or sufficient interest. This is supported by the Senior Courts Act 1981, s31(3). Under this Act, an application to the High Court for judicial review in regard to a mandatory, quashing or prohibiting order, declaration, or injunction can be made only when there is sufficient interest. In the case of R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others ([1995] 2 AC 513), the alliance of trade unions were held to have had sufficient interest to challenge the government’s modified scheme of criminal injuries compensation that reduced the compensation to its members who were potential victims of crimes of violence.

3.3. Executive supports judicial review in the interest of justice. In R (Medical Justice) v Secretary of State for the Home Department ([2011] EWCA Civ 1710), immigration detention charity Medical Justice brought this judicial review petition against the Home Office policy to deport people with less than 72 hours’ notice. The court held that such policy was unlawful as it does not allow the people to get sufficient time to get legal advice. Street (2013) states that the government is against inappropriate use of judicial review where the purpose is to create publicity, delay implementation of its decisions, or even discourage legitimate their action. However, the government also concedes that if the claim is meritorious where the state action is unlawful, there is sufficient interest to bring that claim. As stated earlier, the CPRs provides for court to uphold the rule of law. The observation of Street (2013) is on similar footing. Street (2013) further states that the government holds own view of ensuring that judicial review is readily available in the interest of justice and holding the executive accountable (Street, 2013, p.35).

3.4. Political restraint. In this regard, judicial review is allowed when there is an act or a decision of the government that is illegal, improper or irrational. This review, however, cannot act issue involving the political aspect of the action. It is for the government to address that issue (Stanton & Prescott, 2020, p.67). This is what had occurred in the case of (R (on the application of Justice for Health Ltd v Secretary of State of Health) ((2016) EWHC 2338 Admin). The Secretary of state under their power provided under the National Health Service Act 2006 imposed contracts for junior doctors. The Court upheld the power and discretion of the authority under the Act, which could introduce the new contract.

The ruling in the above case demonstrates the restraint on judicial review of political policy. It upheld the doctrine of the separation of power and the Parliamentary sovereignty. Where the matter is of political nature or is policy related, the court may not find justifiability to bring this matter under its scope of review (Stanton & Prescott, 2020, p.67). Such matter may include, as per Lord Roskill’s judgement in the Council of Civil Service Unions v Minister for the Civil Service ([1985] AC 374), signing of treaties, defence of the realm, national security matters, ministers’ appointment, or Parliament dissolution.

3.5. Statutory restraint. Where the matter involves the executive implementing or executing the legal provisions of a statue, the court’s judicial review cannot take place. If only an action is beyond the authority as provided in a statute, the court is empowered to conduct judicial review. Hence, the protection of judicial review cannot overreach this aspect of the state. It is only when the state acts without a legal power or authority where judicial review comes into play. Mance (2018) explored the boundary between the powers of branches of the government in regard to rule of law and fundamental rights matters, the courts adopt different approaches to deal with legislative and executive acts impacting fundamental rights, moral issues, and state acts. Mance observed that there is an expected increase in consensus governing boundary of judicial power across jurisdictions that are subject to rule of law and fundamental rights (Mance, 2018).

The principle of checks and balance, sufficient interest and interest of justice ensure protection against executive action. However, the judicial review is restraint by political and statutory restraint. In considering these competing interests, whether or not the protection of judicial review against executive power is sufficient is an issue worth exploring.

3.6. Extent of judicial review against the political and statutory restraint. Positive rights require the state to take action. There are, however, certain issues attached to these rights, including the justification problem that determines whether the state has the right; the problem regarding the extent of these rights and the means to carry out the rights; the problem regarding the structure of the rights whether or not they conform to principle of proportionality; and the problem of competence that concerns the court’s role in giving effect to such rights (Klatt, 2015). The first issue appears to represent the political and statutory restraints that remove the court from reviewing the executive action. However, the rest of the issues are likely subject to judicial review. Thus, any matter that falls within the restraints are less likely to avail protection of judicial review. In this light, the protection will not be sufficient.

Referring back to the observation of Street (2013), government also wants to ensure judicial review is readily available to meritorious claims. This finds support in the Human Rights Act 1998. The existence of the Act addresses all the issues mentioned above. It section 4 prioritises judicial review where the court can declare a legal provision incompatible with a Convention right. This also indicates that it can declare a state action incompatible. This Act has removed the statutory and political restraints in a way. Courts can develop law in the interest of justice. In A and Others v Secretary of State for the Home Department, ([2004] UKHL 56), the House of Lords held that the decision of the Secretary of State to extend detention period of a terror suspect without trial to 90 days contravened Convention rights. The Protection of Freedoms Act 2012 sets 14 days normal period (Partington, 2013, p.61). This case ruling shows protection afforded through judicial review in the interest of justice. Similar judgement could be found in regard to the issue of national security. In Redmond-Bate v DPP ([2000] H.R.L.R. 249), the court recognised the change in the role of the court after the HRA 1998 particularly in regard to question of national security. The courts hold the view that issues regarding national security are within their jurisdiction of review (Kavanagh, 2011).

Conclusion

In the light of the system of check and balances, as long as the court does it review role within the hierarchical structure provided by the Constitution and within the statutory texts, protection against any unlawful, improper or disproportionate action of the state will sustain. The statutory and the political restraints are two main boundaries that the courts cannot cross. To the extent applicable, it may do so as empowered by the HRA 1998. The power or judicial review against executive power is validated as long as it is within the hierarchical structure that holds the Parliament supreme.

Reflection

I focused on laying down a structure, which helped me present the essay in a sequential, orderly manner. Having a sound introduction gives a clear idea about the aim and purpose of the essay. I attempted to insert a relevant theme to the issue in hand.

Each paragraph is linked with each other in a smooth transition from one point to another. They are made relevant with the question in hand by inserting relevant comments. This is done by inserting relevant legislation, theories, and cases.

In this essay, points are added that helped in determining the possibility of protection, restraints, and also the competing interests that define sufficiency of protection. I have tried to make the paragraphs and sentences impactful considering the issue in hand. This was attempted considering the desired objective of making solid points as well as improving my writing skills.

With this essay, I hope I have been able to demonstrate desired analytical and evaluation skills and to make reasoned arguments.

2030 words

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Bibliography

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