The Power Given to Judges by Judicial Review Actions - Essay Example

?Judicial Review The courts are empowered to rescind the acts of the executive, and this is termed judicial review. The latter is also employed to annul legislative power that does not comply with a superior standard. The judiciary in England monitors the manner in which public power is exercised, through the device of judicial review. It is fundamentally a procedure of the English administrative law. An individual who believes that public power has been exercised in an unlawful manner can approach the Administrative Court, in order to request the latter to conduct a judicial review.1 On verifying the contention of the petitioner, if the court is convinced of its veracity, then the latter can annul the unlawful act. Under certain restricted circumstances, the claimant is entitled to be awarded damages. In addition, the court may pass prohibitory or obligatory orders, restraining the authority from acting unlawfully or to force it to act in a lawful manner.2 As such, judicial review is customarily applicable to the exercise of statutory power, by a public body. It is quite infrequent, in such cases, for a court to disallow judicial review, on the grounds that the exercise of power was unrelated to the discharge of some public function or duty owed to the individual. Issues that in general fall outside the purview of judicial review are those that pertain to the initiation of military action against a hostile nation or the deployment of troops.3 Moreover, a public authority is precluded from breaching the rights provided by the European Convention on Human Rights via Human Rights Act 1998. In R (on the application of A and others) v. Partnerships in Care Ltd, a private mental health institution had forcibly restrained the claimant, in accordance with the provisions of the Mental Health Act 1983. The court ruled that this institution was discharging the function of a public authority, as provided for in section 6(3)(b) of the HRA.4 In addition, section 6(1) of the Human Rights Act 1998 requires the principal public authorities to ensure that the Convention rights are not infringed in their functions. In addition, section 6(3)(b) of the Human Rights Act 1998 directs that these public authorities have to ensure that their functions are in compliance with the rights provided by the Convention. The rights provided by the European Convention on Human Rights have largely been frustrated. This is due to the penchant of the courts to interpret section 6(3) of the Human Rights Act 1998, in such a manner that most of the organisations are not classified as a Public Authority. Furthermore, this distressing situation is exacerbated by the fact that the courts have not yet concluded, whether a regulatory body constitutes a public authority. There are several cases that have challenged the legal effect of Acts of Parliament, in the UK. The decision in Factortame reduced the effectiveness of parliamentary sovereignty. In this case, the House of Lords suspended legislation, in order to establish that EC law had precedence over domestic law. In Jackson and others v Her Majesty’s Attorney General, the plaintiffs contented that the Parliament Act 1949 did not have legal effect as it was not an Act of Parliament. Consequently, the Hunting Act 2004 was also invalid, as it was not an Act of Parliament. This case dealt with whether the judiciary could challenge an Act of Parliament.5 Their Lordships dismissed the plaintiff’s argument and upheld the validity of the Hunting Act. It is indispensable for the courts to recognise the fact that power derived from the constitution is to be apportioned between the various governmental branches. This necessitates an approach founded on due deference towards the executive and legislature by the judiciary. It is not possible for supremacy to coexist in this environment.6 All the same, there are several issues, wherein the situation is muddled, due to a plethora of immaterial doctrinal instruments. In Aston Cantlow the House of Lords held that public authorities had to be dealt with in a manner that was markedly different from what was employed with respect to functional agencies. 7 The above decision provided a suitable test for establishing the function of core public authorities. However, the situation is not ideal, as the manner in which the courts will interpret such function varies from case to case. Thus, there is considerable ambiguity, as to whether the courts will accord greater importance to the nature of the entity that discharges these functions or on the function of the core public authority. For example, the court in Housing and Regeneration Community Association Ltd v. Donoghue adopted a limiting approach while interpreting section 6(3)(b) of the Human Rights Act 1998. The outcome was that it forestalled the claimant from seeking a judicial review.8 In R (Heather and others) v. Leonard Cheshire Foundation and another, the appellants were residents in premises owned and administered by the Leonard Cheshire Foundation. The latter came to a decision to discontinue the charitable home. The distressed appellants sought a judicial review of this decision, which was refused by the court. 9 In Pickstone v Freemans, the House of Lords, independently applied Article 119 of the Treaty of Rome. Thereafter, they interpreted section 2 of the European Communities Act to prevent UK law from influencing the EC law.10 Similarly, in R v Secretary of State for Employment, the House of Lords rescinded the Employment Protection Act 1978 as not being in compliance with the provisions of EC law.11 Strictly speaking, the Human Rights Act 1998, empowers the courts to examine legislation, in order to determine, whether it is compliant with the European Convention on Human Rights. Thus, a situation has arisen, wherein Parliament no longer enjoys a monopoly in enacting laws in the UK.12 The provisions of the European Convention on Human Rights13 were incorporated into UK law, by the enactment of the Human Rights Act 1998.14 With the advent of the Human Rights Act 1998, the courts were empowered to examine Acts of Parliament and administrative procedures, with the object of ensuring that these were compliant with the rights provided by the European Convention on Human Rights.15 The Belmarsh case involved the detention without charge of nine foreigners.16 These individuals were suspected of having perpetrated terrorist acts, and they were detained under the provisions of the Anti – Terrorism Act.17 Their detention was on the basis of certification by the Home Secretary.18 These detainees contested the UK government’s derogation from the provisions of the European Convention on Human Rights. The House of Lords examined the derogation of the UK government from the European Convention on Human Rights. Thereafter, their Lordships concluded that the Anti – Terrorism Act was incompatible with the European Convention on Human Rights. It was also opined by the House of Lords that the detention was discriminatory and disproportionate to the imagined threat to the nation and its populace.19 The UK government responded to this setback by introducing a control mechanism that was made applicable to its nationals as well as foreigners. In the process, the government bestowed vast powers upon itself, and this had a serious impact on fundamental freedoms and human rights.20 Article 6 of the European Convention on Human Rights provides a suspect with the right to remain silent during questioning. This was upheld in the decision in Murray v United Kingdom.21 This right was compromised to a major extent with the ruling in Condron v United Kingdom,22 wherein the judge instructed the jury to draw a suitable conclusion from the silence of the accused.23 In order to determine whether an entity can be subjected to judicial review, it is essential to establish that it exercises a public function. Such determination is influenced by the extent of the statutory basis of the entity, and the nature of its functions. Thus, in R (Siborurema) v OIA24 , the court ruled that the Office of the Independent Adjudicator (OIA), was subject to judicial review, due to the statutory context and the nature of its functions. The OIA had been primarily established to address complaints from students against higher education institutions.25 Moreover, in R (Weaver) v London & Quadrant Housing Trust, 26 the act of terminating a tenancy was deemed to be subject to judicial review, as this act entailed the discharge of a public function. There have been a number of cases that have contested the legality of the Human Rights Act 1998 and its conformity with the European Convention on Human Rights. Some of the more prominent of these are Malone v Metropolitan Police Commissioner 27 and R v Secretary of State for the Home Department, ex parte Brind. 28 The ruling in these cases demonstrates that there is scant protection for rights by taking recourse to the Human Rights Act 1998. These judgements had failed to indict the Crown for having violated the rights provided by the common law or the European Convention of Human Rights. A very disturbing inference that could be drawn from these rulings is that there is no judicial remedy, worth the name, with regard to the violation of individual rights. In addition, it has become very clear that the courts do not have the power to label an Act of Parliament as unconstitutional.29 In the context of statutes or primary legislation, English law does not permit judicial review. The only exception to this principle is that judicial review is permitted, with respect to primary legislation that is at variance with the European Community law. With regard to a statute, the courts can only review it, in order to determine if it is compatible with the Human Rights Act 1998. Thus, there is no empowerment to suspend or rescind an act that is incompatible with the European Convention on Human Rights. Bibliography A and others v Secretary of State for the Home Department [2004] UKHL 56. Anti-terrorism, Crime and Security Act 2001. Bamforth, N & P Leyland, Public Law in a Multi – Layered Constitution, Hart Publishing, 2003. Bradley, AW & KD Ewing, Constitutional and administrative law, Pearson Longman, 2007. Condron v United Kingdom [2001] 31 EHRR 1. Ginsburg, T, Judicial review in new democracies: constitutional courts in Asian cases, Cambridge University Press, 2003. Human Rights Act 1998. Jackson and Others v Her Majesty’s Attorney General (2005) UKHL 56. Jenkins, D, ‘Common law declarations of unconstitutionality’, International Journal of Constitutional Law, vol. 7, no. 2, 2009, pp. 183 – 214. Lewis, C, ‘Current Issues in Remedies in Judicial Review’, Judicial Review, vol.15, no. 2, 2010, pp. 144 – 148. Malone v Metropolitan Police Commissioner (N0. 2) (1979) 2 All ER 620. Murray v United Kingdom [1996] 22 EHRR 29. Nunn, TR, Judicial Review, 2009, retrieved 22 April 2011, . Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another (2003) UKHL 37. Pickstone and others v Freemans plc (1988) 2 All ER 803. Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595. Poole, T, ‘Harnessing the power of the past? Lord Hoffmann and the Belmarsh detainees case’, Journal of law and society, vol. 32, no. 4, 2005, pp. 534 – 561. R (on the application of A and others) v Partnerships in Care Ltd [2002] 1 WLR 2610. R (on the Application of Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. R (on the application of Williamson) v Secretary of State for Education and Employment, UKHL 15 [2005] 2 AC 246. R v Secretary of State for Home Department ex parte Brind (1991) 1 AC 696. R (Siborurema) v OIA [2008] ELR 209. R (Weaver) v London & Quadrant Housing Trust [2009] 4 All ER 865. Smart, U, Law for Criminologists: A Practical Guide, Sage Publications Ltd, 2008. The Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Read More