Judicial Review in United Kingdom (UK)
Can British Supreme Court strike down the laws that are repugnant to the provisions of British Constitution?
Contributed by Naghma Sherin Afridi,
Lawyer at @trek_law
Meaning of Judicial Review:
“JUDICIAL REVIEW, in its most widely accepted meaning, is the power of courts to consider the constitutionality of acts of other organs of government where the issue of constitutionality is germane to the disposition of law-suits properly pending before the courts.”
The concept of judicial review has different meanings and connotations under different democratic Constitutions. Thus doctrine of judicial review has acquired different nuances during the course of its evolution in UK, USA and India. While its origins can be traced to UK which no written Constitution, it has become firmly established in USA with a written Constitution establishing a federal polity.
Judicial Review in UK
In the United Kingdom, constitution is largely unwritten and unitary in character and parliament is sovereign, the courts can declare an act of parliament to be incompatible with the constitution, but they cannot invalidate a law for being inconsistent with the constitution. In other words, the judiciary can only interpret the constitution.
Judicial review is a particularly important aspect of the constitutional settlement in the UK. It is a process, a court case, where a judge or judges decide whether a public body has behaved lawfully. It offers a route to justice for those adversely affected by public body decision making and it performs an essential tasks in that it allows the courts and judiciary oversight of government decision making, be that central or local government, or parts of the state that implement government policy, including the NHS or police, as examples.
It is a fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.
Dicey states that “English judges do not claim or exercise any power to repeal a Statute.” He proceeds to say that judicial law-making is “in short, subordinate legislation” because “Acts of Parliament may override and costantly do override the law of the judges.”
It has often been suggested that judges are somehow able to ‘overrule’ legislation, for example if, exercising the power given to them by the Human Rights Act 1998, they declare that a particular law is incompatible with the rights and freedoms guaranteed under the European Convention on Human Rights.
It is however wrong to suggest that the judiciary can, using the Human Rights Act 1998, overturn legislation. That Act only permits the High Court, the Court of Appeal or the House of Lords/Supreme Court to declare legislation to be incompatible with the Convention rights. A declaration of incompatibility does not strike down legislation or remove it from the statute book, as is the case in some jurisdictions.
Grounds of Judicial Review:
The following are the grounds for judicial review:
- Acting outside their powers
Public bodies are generally only free to do what the law says they can
Public bodies must correctly understand and apply the law that regulates and limits their decision-making powers. If they do not follow the law correctly any resulting decision, act, or failure to act will be unlawful.
2. Use of discretion by Public Authorities
Where the law gives a public body the ‘discretion’ to take a decision as it sees fit, public law regulates the public body’s power in a number of ways, including by requiring it:
a) to take into account only relevant information and to disregard all irrelevant information;
b) to address the right question, and take reasonable steps to obtain the information necessary to make a properly informed decision; and,
c) to make sure they have not limited, or ‘fettered’, their discretion by applying a very rigid policy as if it were the law.
3. Irrationality and proportionality
The courts may intervene to quash a decision where they consider it to be
so demonstrably unreasonable as to be “irrational” or “perverse”. The test is whether a decision “is so unreasonable that no reasonable authority could ever have come to it .
The concept of proportionality involves a balancing exercise between
the legitimate aims of the state on one hand, and the protection of the individual’s rights and interests on the other.
4. Fairness of Procedure
A public body must never abuse its power by acting unfairly. If you are affected by a decision that a public body (including courts and tribunals) is going to take, you must be treated fairly.
A public body must be – and be seen to be – impartial, that is it must not give the appearance of being biased (whether or not it is actually biased). It must not allow decisions to be taken by people who have a financial interest in the outcome or a personal relationship with one of the parties that could give the appearance of bias.
The courts in England have come to exercise only a limited power of judicial review in the sense that they review the validity of subordinate legislation and the other executive acts of the government and strike them down if they are ultra vires the provisions of the parent Acts under which they are made. But, the English courts, including the House of Lords, do not have the power to declare the Acts of Parliament as null and void on any ground whatsoever. The absence of a written Constitution and legal recognition of the doctrine of parliamentary sovereignty seem to have inhibited the emergence of a full-fledged doctrine of judicial review in England.