The Grounds of Judicial Review - Essay Example

? Analyze the extent to which the rules of standing and the grounds of judicial review have struck the right balance between helping claimants achieve justice and protecting the executive and public bodies from excessive litigation. [Name of the Writer] [Name of the Institution] Introduction When we talk about the rule of law and natural justice it means that everyone has the opportunity to benefit from certain provisions of law and to knock down at the door of competent jurisdiction for justice and fair play. It is the duty of the law makers to make sure that everyone should seek justice in time and in accordance with the laws in vogue since justice delayed amounts to justice denied. Victims have the fundamental right to approach certain legal channels that exist within the UK legal system, the subordinate courts, High Courts and the Supreme Court as the case may be1. The law of standing comprises rules that determine, whether the remedy seeker is a bonafide person or is he legally empower to initiate legal proceeding against the defendant. We have noticed that in private matters, it is very difficult for the victims to seek justice due to lack of legal resources and the hefty cost involves in initiating legal course of action against the party at fault. Hence, visible hurdles for the litigants in the matter of public interest are there2. Public interest litigation may be common in the developed countries, but it seldom seen in the developing countries due to cost incurs on public interest litigation. Enforcement of public right most often requires due role of public bodies in administrating and implementing such functions e.g. health, safety, security or the environment. There is a difference between the public interest litigation and the private interest litigation. In the UK legal system, there is a body of common law and the statutes which revolves around the exceptions with regard to the rule of standing that lacks the protection of public right3. In the mentioned legal system, judicial review is exercised under RSC, order 53 to ensure judicial control over administrative action. The matter of each and every judicial review is a decision that made by some authorized person or persons is/are called decision maker/makers. They have the right to take the decision or refuse to take the decision4. It is (Judicial review) by all standards different from an appeal. The clear distinction is that appeal can be filed in the appellate jurisdiction by the petitioner provided the judgment of the subordinate court did not touch upon the legal or technical aspects of the case whereas the judicial review is connected with the legal aspect of the decision only or the specified act5. Judicial Review Judicial review has the strong relationship with the powerful executives in terms of accountability. It is the constitutional obligations of the judiciary to control the misuse of power of the executives. Of course, executives do not like the judicial review against the backdrop of unbridled discretionary powers they are being enjoyed. On the other hand, judiciary encourages the law abiders and the rules comply with executives to carry out their jobs without any fear or favour. In the presence of strong judiciary, the executives should not comply with the illegal orders of their superiors6. In the English legal system, everybody is accountable to his or her deeds. It is the essence of the cited legal system that the actions or the decisions of the executives are subject to judicial review by judges in order to ensure that their actions or decisions are in accordance with law. Further, the judges have the authority to examine the suggested changes in the legislative structure whether they are in line with the constitutional requirement. Judicial review is utmost important keeping in mind the “power corrupts and absolute power corrupts absolutely “. From the aforementioned contents, it is clear that the basic responsibility to address the legal lacunas in the decisions of the executives rests with the judiciary. The judges now days facing immense pressure in disposing of cases timely due to work load. In order to dispose of the cases within the time limit, the more judges should be inducted by the government7. Apart from the above, it is the need of the hour that the executive should play its due role in providing a number of direct routes of appeal to tribunals in certain cases. The judges should be quick in their decision and should not involve themselves in unnecessary technicalities. Grounds for Judicial Review Here, we discuss a number of grounds which attract judicial review. Take the example of GCHQ Case of 1985. In the mentioned case, Lord Dip lock identified the grounds which called for judicial review of the administrative action / decision taken by the executive or the body of executives. The classified grounds for judicial review are 'illegality', 'irrationality', proportionality ’and’ procedural impropriety'. He was of the view that in the days ahead, more grounds could be added in the existing fold provided that the law permits doing so on a case considering the case basis8. Illegality Judicial review for the illegality means that the executive should understand the illegality of his or her action so as to ensure that the power conferred on him is exercised judiciously. In other words, if an executive decides the cases on merits and in accordance with the rules and regulations in force, he or she is not answerable to anyone including the judiciary since he or she has not done anything wrong. If an executive uses his or her discretion, otherwise, the judge in judicial review may consider his or her action in excesses of his or her power. Hence, judiciary can declare his or her decision as null and void being ultra virus. If an executive has exercised his or her lawful power judiciously, the work load of judicial review by the judges could be minimized9. For ease of reference, we may refer the cases of Bromley Council v Greater London Council (1983) and R v Home Secretary, ex parte Fire Brigades Union (1995) wherein executives exercised their powers beyond the scope of their statutory authority. Irrationality Irrationality is another ground for judicial review. Here, we may refer the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) wherein the Court of Appeal held that the court can interfere in a decision provided it sounds no reasonable authority. Whereas the Lord Dip lock in the case of GCHQ stated that the irrationality applies to such decisions, which by all counts are against the logic and the accepted norms and no sensible person who applies his mind could have arrived on such a debatable decision. To support the point of view of Lord Dip Lock, we may cite here the cases of Strict land v Hayes Borough Council (1896) and R v Derbyshire County Council, ex parte The Times (1990) wherein it was held that exercising of discretionary powers by the executives in an improper manner and without taking into account all relevant facts amounts to abused of discretionary powers. Proportionality Amongst other grounds for judicial review, the judge can set aside the administrative decisions in a number of legal systems around the globe. In England, it is applicable where issues of EC law and ECHR rights arise. In the meantime, it is not considered as a ground for judicial review. However, with the passage of time and as per the statement of Lord Dip lock, proportionate cases can be qualified for judicial review. Presently, it can be treated as irrational10. Procedural Impropriety Besides other mandatory requirements for judicial review, procedural impropriety is one of the factors that impresses upon the decision makers to strictly observe procedural requirements as laid down in the legislation. The decision maker can be held responsible provided fundamental rules of natural justice are not found in their decisions besides failure to act in accordance with procedural fairness. To substantiate our stance, the case of Aylesbury Mushroom Case 1972 may be referred11. Case Examples R (Bancoult) v Foreign Secretary (HL) (2009)1AC 453 In the mentioned case, it was held by the House of Lords that since the British Indian Ocean Territory (Constitution) Order 2004 were an ingredient part of BIOT besides imperial legislation, which serves the purpose of undivided realm of the United Kingdom. Accordingly no obstacle is found to the review jurisdiction of the United Kingdom Courts12. GCHQ Council of Civil Service Unions v Minister for the Civil Service In the referred case trade union and the six employees sought judicial review on the minister’s directives. In an affidavit filed, the Cabinet Secretary took a plea of disruptive industrial action favouring national trade unions. They are of the opinion that national campaign by the unions aims at to damage government organs. Therefore, prior permission could have further disruption and makes the areas of GCHQ more vulnerable. The Court of Appeal allowed an appeal to the minister. Later on the appeal was dismissed by the judiciary keeping in mind that executive action could not be treated as valid merely on the grounds that it was not performed in pursuance of the power that derives from common law13. Wheeler v Leicester City Council 1985 In the aforesaid case, House of Lords allowed an appeal to the defendant since the ban on recreation was unreasonable, unfair and amounts to procedural impropriety. It considered such action as misuse of power on the part of the council. Hence, the decision of the court of appeal was reversed14. Rules of standing - R v Inland Revenue commissioners, ex p. National federation of self employed and small business Ltd On an appeal filed by the Inland Revenue, the House of Lords held that it was unfortunate on the part of the courts that it had taken locus standi as preliminary issues. It could be in the best interest of justice if the applicant’s request contains sufficient material to attract rule of standing. The other view is that an appeal should be allowed by the competent jurisdiction taking into account the whole scenario. The Divisional Court justified its action in granting leave with regard to the nature of "the matter". Further, the body of taxpayers had shown no equitable interest to justify its application for relief. The body in question failed to prove valid reasons in believing that certain statutory duties have been performed15. R (Daly) v Secretary of state for the home department (2001) According to the European proportionate doctrine “an official measure should not have any greater impact on private interests than it is necessary”16. In this respect you may refer the case of Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten [1978] ECR 1991, 2003. As we have said earlier on, proportionality may not have sufficient ground for a separate review. However, when a decision is challenged by someone, the modern approach is required under the HRA to address the issue as opined by Lord Steyn in the case of R (Daly) v The Secretary of State for the Home Department. In his opinion “There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test” as adopted by the Court of Appeal in the case of R v Minister of Defense ex parte Smith [1996] QB 55417. Therefore, the domestic court should have a value judgment taking into consideration an evaluation to the circumstances of that time. For an update on the issue, mentioned case may be referred: Wilson v The First County Trust Limited (No. 2) [2004]18. The courts should examine the proportionate cases objectively. Refer the case of R (Williamson) v The Secretary of State for Education and Employment [2005]19. Comments of Lord Bingham in the case of R (SD) v The Governors of Denbeigh High School [2007]20 may be perused. Lord Clyde was of the view that the concerned courts while determining the limitations should make themselves answerable to the questions as to whether a) legislative objective is sufficient to justify limiting one’s fundamental right b) the measures suggested are enough to meet the legislative requirements and c) the means used for the right or for the freedom are no more than it is required to achieve the desired objectives. Conclusion We have gone through the grounds that attract judicial review. The judicial review, in fact, is a deterrent for the authority of the executives. In the presence of such review, no executive in the official hierarchy dares to violate the prevalent laws, rules and regulations. References Conant, Lisa. "Review Article: The Politics of Legal Integration*." JCMS: Journal of Common Market Studies 45, no. s1 (2007): 45-66. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Harlow, Carol. "Public law and popular justice." The Modern Law Review 65, no. 1 (2002): 1-18. Malleson, Kate. The legal system. Oxford University Press, 2007. R (Bancoult) v Foreign Secretary (HL) (2009)1AC 453 R (ex parte National Federation of Self-Employed and Small Businesses Limited) –v- Commissioners of Inland Revenue [1981] UKHL 2 R (SD) v The Governors of Denbeigh High School [2007] 1 AC 100, para 30 R (Williamson) v The Secretary of State for Education and Employment [2005] 2 AC 246, paragraph 51 R Secretary of State For The Home Department, Ex Parte Daly (2001) 1 WLR 2099 R v Minister of Defense ex parte Smith [1996] QB 554 R. (On The Application Of Daly) V Secretary Of State For The Home Department [2001] UKHL 26; Ward, Richard, and Amanda Wragg. English legal system. Oxford University Press, 2005. Wheeler v Leicester City Council [1985] AC 1054 Wilson v The First County Trust Limited (No. 2) [2004] 1 AC 816, paragraph 62-67 Read More