Judicial Review in Perspective - Term Paper Example

Introduction There is concern with techniques for holding government accountable for what it does. From the outset none of the terms ‘check’, ‘control’ or ‘render accountable’ has a single clear meaning; however, there are several ways of checking and controlling and several types of accountability and one of them is the judicial review, the process by which administrative action is held up to scrutiny by the courts (Dicey, 1915). Judicial review has its own proceedings and procedures. In particular leave to apply to judicial review must be made within three months of the event that is alleged to give rise to the claim. Different views can be held of the role of the courts in this area, but they all have one thing in common; they see the prime function of judicial control as essentially negative, namely to ensure that government bodies do not overstep the proper blends of their powers and to protect individuals and the interests of groups and of the public against undue encroachment by government agencies. The two judicial reviews which make it less than ideally adapted to the function of ensuring administrative efficiency are; first is unsystematic nature of judicial review; Courts will review the activities of government only when asked to do so, within a time, by an applicant with the required interest in the outcome of the review. Judicial review cannot be used to conduct wide-ranging and coordinated investigations into the conduct of government business and secondly judicial review is essentially retrospective; its primary concern is with past conduct, and its effect 1on the future conduct of the administration is incidental (Cooper, 1988). In United Kingdom constitution, the major weapon of judicial control over the exercise of governmental power is provided by the action for judicial review. This action serves to keep public bodies within the scope of the power conferred on them by the law. Prior to the present law commission inquiry into procedural aspects of judicial review, there have been significant changes in the ways in which governmental power is exercised and controlled. This focuses on the law commission’s report number 226 the ‘Judicial Review and Statutory Appeals’ which examines specific proposals contained therein arguing that, underlying the reforms there exists no coherent vision of the future role of public law. But instead, what is revealed is a confused cocktail of measures in which the tension between the legitimate needs of public administration and the opposing requirement that the government should act according to law remains unacknowledged and therefore unresolved. There is, moreover a disappointing failure to evaluate the experience of public law procedures found in other jurisdictions. In response to these perceived deficiencies, the authors set out an alternative and principles account of judicial review, the central feature of which is to ensure that public power is subjected to an appropriate degree of judicial scrutiny. This alternative account is later used to inform arguments about specific references. It is in this regard that the valuable experience of other jurisdictions public law procedure is also drawn upon (Bell & Iran, 1996). In 1992, Roy V Kensington and Chelsea and Westminster, a general medical practitioner was held to have the right to bring a private law action against his employer when public law matters of policy were at state, despite the principle of O’Reilly V 2Mackman 1983 that made judicial review proceedings on exclusive remedy in public law actions. This is because his claim involved a private law element that was collateral to the Public law concerns (Badley & Ewing, 2006). In United Kingdom, Administrative law relates to the body of law that regulates the responsibilities of the individual to the apparatus of state, the terms are also used to refer to the law governing the operation of tribunals and quasi-judicial bodies. For an application to succeed for a judicial review, the application must show four things: (a) that an application for Judicial Review is appropriate for the kind of loss suffered by the claimant; (b) that the body against which the claim is made is subject to judicial review at all; (c) that the applicant has sufficient standing to make that claim; (d) that the actions of the reviewed organization give grounds for review. The applicant can ask the court to grant a number of orders. A `mandatory order' compels the reviewed body to do something; a prohibitory order compels it to refrain from doing something, a declaration sets out the court's view on the legality of a particular course of action, and a `quashing order' nullifies a decision and remits it for reconsideration. In addition the applicant can seek an injunction which is, in practice, similar to a mandatory or a prohibitory order (Bridges et al., 1995). In general, judicial review will not be granted if the claimant has a private-law cause of action against the defendant, e.g., in contract, or has a right of appeal against a decision. For some years, courts were ready to give leave to apply for judicial review where the right of appeal or the private law remedy would be expensive or time-consuming. However, the rapid rise in the number of applications led the courts to reconsider this approach, and it is now more difficult to get judicial review where alternative remedies exist. However, the courts have not applies this policy consistently (Leyland & Anthony, 2005). As well as limiting judicial review to cases where there is no private law action, it is now recognized that judicial review should be the exclusive procedure where it would be appropriate at all. For example, if a claim is based on the contention that a public body has acted beyond ones power, this must normally be pursued through judicial review (O’ Reilly v Mackman 1983). However, there are a number of exceptions. First, it was decided in Roy V Kensington & Chelsea & Westminster that a private law action could be used if there were a 3mixture of private law and public law issues at stake. In effect, this decision limits the O'Reilly principle to cases where there are no private-law rights at issue. Secondly, Wands worth LBC V Winder 1985 establishes that a counter-claim to a private law claim can be based on the fact that the claimants' original actions were beyond ones power. This is so even where the counter-claim involves no private law rights and would therefore not fall into the category of exceptions covered by Roy v Kensington (Bell & Iran, 1996). In practice, the Civil Procedure rules give the court a power to transfer cases from one form of hearing to another provided that the court has the experience and jurisdiction to hear the case. This may mean that the procedural niceties raised by O'Reilly, etc., will become less important. Judicial review will only lie against bodies exercising public duties. However `public duties' is not always easy to define and the scope of judicial review in the last 30-40 years has expanded enormously. The major first milestone was the decision in R V Criminal Injuries Compensation Board 1967 which held that a body set up under prerogative powers was reviewable. Traditionally only powers set up under statute were considered to be reviewable, because only these bodies would have there powers clearly defined. The next development was R V Panel on Takeovers and Merger Exparte Data fin 1987. The panel was not a body whose powers had any obvious source; it had no statutory or prerogative basis. Nevertheless, it was held to be exercising `public duties' for the purposes of judicial review. This determination was made because the Panel has extensive powers, and those powers do not arise entirely from the consent of the organizations it regulates. In addition, it decisions were not subject to any effective appeal procedure. The `Datafin principle' gives the courts considerable leeway to deem that a body is subject to judicial review. However, there are certain bodies that remain unreviewable. First, an employer is not generally reviewable on employment matters at the behest of its employees, even if it is a public body. Second, many occupational regulatory bodies are unreviewable, particularly in sport. Third, private educational bodies are unreviewable in respect of their academic policies, although state schools and colleges are reviewable. If the body under question is of a class which is considered to be appropriate for judicial review, in the sense that it exercises public duties, it is still necessary to decide whether that particular body is reviewable. In particular, there are certain bodies and individuals that are excluded by statute from the scope of judicial review. Moreover, statute will occasionally attempt to `oust' the jurisdiction of the court. The courts have been ingenious in their 4approach to such `ouster clauses', and have often found ways to circumvent them (Bell, 1992). Leave to apply for judicial review is only granted to individuals who have a `sufficient interest' in the matter. In practice, standing is a complex matter of mixed fact and law and, unless the individual is clearly a meddlesome busybody, leave to apply is not normally refused on the grounds of standing. Instead, standing is determined in the full hearing along with the merits of the case. Traditionally the courts took a rather restrictive view of standing, holding that only a person who is directly affected by an administrative action should have standing to apply for review. However, this restriction was relaxed considerably in IRC V National Federation of Self-Employed and Small Business 1982. In that case, according to Lord Diplock, it was entirely proper for a public-spirited individual or body to challenge the legality of an administrative action (Cane, 1996). This trend has generally continued (e.g., (R (Whitehouse) v IBA (1985), R v Foreign Secretary ex p Rees-Mogg) but there are a few notable exceptions. In particular, R V Secretary of State for the Environment Exparte Rose Theatre Trust 1990 denied standing to a pressure group set up to contest a particular ministerial decision. The modern expressions of the grounds for review can be found in Lord Dip lock’s speech in Council of Civil Service Unions V Minister for Civil Service 1984, usually known as the `GCHQ case'. In this case the Union challenged the right of the Prime Minister to disallow trades unions operating in the GCHQ - an organization involved in surveillance for national security purposes. Executive action based on common law or prerogative is not immune from judicial review, but the interests of national security may outweigh the interests of fairness to the individual (Lustgarten, 1986). . The court held that the PM's actions were reviewable but, in this case, interests of security supported his decision. Along the way, Lord Diplock divided grounds for judicial review into three classes: `illegality', `irrationality', and `procedural impropriety'. Illegality covers cases where a body acts beyond the powers conferred on it by legislation and where a decision maker incorrectly informs himself as to the law. `Irrationality' covers cases of exceptional unreasonableness. Procedural impropriety covers failures to comply with procedures laid down in legislation and, in some circumstances, breaches of natural justice (Cooper, 1988). In conclusion, the Human Rights Action of 1998 imposes a duty on public bodies 5to operate within the confines of the European Convention on Human Rights, and if they fail to do so, then their actions may automatically be beyond ones power and thus reviewable. In principle, therefore, the act considerably extends the ability of the courts to quash administrative decisions on human rights grounds (Marshall, G et al., 1994). Bibliography Bell, J (1992) in Hawkins (Ed). The Uses Discretion. Oxford university press; Oxford Bell, J. and Iran, I. (1996). Journal Article Towards a better public law Bradley, A. and Ewing, K (2006). Constitutional and Administrative law. Oxford. Bridges, L et al. (1995). Judicial Review in perspective. London, 2nd edition Cane, I (1996). An Introduction to Administrative Law. Oxford Cooper (1988).Hard Judicial Choices. New York Dicey, A (1915). Introduction the study of the law of the constitution. London Leyland P. and Anthony, G. (2005). Administrative law. Oxford Lustgarten, L (1986). The Governance of police. London Marshall, G et al. (1994). The changing constitution. Oxford. Read More