Judicial Review and Administrative Law:
In many other jurisdictions, ‘judicial review’ refers to the power of a constitutional or supreme court to strike down legislation that is contrary to the (written) constitution. In the UK, the court’s power of judicial review is significantly more restricted due to parliamentary sovereignty.
‘The law relating to the administration’. [1]
‘The body of law that establishes executive institutions of government, confers governmental powers, and imposes duties on public authorities.’ [2]
History:
Administrative law is bound up with the history of administration. Administrative law began to grow significantly in the 19th century with the increasingly urbanised administrative state during the industrial revolution.
Existing structures and frameworks for the administration of public services were beginning to fail with the rapidly increasing population. These services were designed for rural communities, so struggled with urbanisation.
With an increase in government concern for improving the quality of life for citizens, particularly after WW2, there was also a rise in a lack of confidence in judges because of their limited willingness to review decisions of public bodies.
The number of judicial review cases has increased dramatically in recent years for immigration and asylum cases. However, it has generally not increased too much for other types of cases since 2000.
Role of the Courts:
Questions arise as to how and to what extent the courts should examine delegated and discretionary powers granted by Parliament.
Courts are often concerned with the procedural aspect of how the decision was made and whether they had the legal power to do so, but they are often reluctant to examine the merits of the decision itself.
In R (Fewings) v Somerset CC, S had imposed a local ban on stag hunting, which F was seeking to challenge.
Laws J: ‘The judicial review court is not concerned with the merits of the decision under review. The court does not ask itself the question, “Is this decision right or wrong?”. Far less does the judge ask himself whether he would himself have arrived at the decision in question … The only question for the judge is whether the decision taken by the body under review was one which it was legally permitted to take in the way that it did.’
‘The very concept of administrative discretion involves a right to choose more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred.’ [3]
A court in judicial review has ‘one function only, which is to rule upon the lawfulness of decisions’. [4] The courts have a supervisory role give legal accountability.
Distinguishing between ‘Review’ and ‘Appeal’:
Appellate jurisdiction is when the courts are empowered to evaluate the merits of the decision, whereas review jurisdiction is supervision of the legality and processes by which the primary decision maker makes their decisions.
‘The power of a court to interfere … is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.’ [5]
Judicial review comes from common law jurisdiction; appeals are created by statute. Parliament can choose whether or not to create a right of appeal. Where there is a right, Parliament may require the claim to be dealt with through a specialised procedure, rather than through judicial review, and impose time limits.
Judicial review can only be used in exceptional circumstances. EG: where the appeal would not be able to remedy the situation. [6]
Philosophical Foundations:
There are two potentially competing schools of thought on the foundations of judicial review.
Ultra Vires and Parliamentary Sovereignty [7]:
The ultra vires model works by reinforcing parliamentary sovereignty by policing the entities it has delegated power to. It is the role of the courts to give effect to the express or implied intentions of Parliament. This is essential in upholding democracy.
‘The simple proposition that a public authority may not act outside its power (ultra vires) might fitly be called the central principle of administrative law’. [8]
Common Law and Rule of Law [9]:
Like Parliament, the authority of judges in judicial review derives from the unwritten constitution in the common law.
All government action must comply with the rule of law. The courts’ role is in service to the common law, not necessarily Parliament.
Some would argue that the rule of law should have a greater role as the controlling principle of the constitution; this would give judges the power to review not only the government, but also the actions of the sitting Parliament. This obviously has massive implications for the doctrine of parliamentary sovereignty.
‘In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the […] Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’ [10]
‘challenging established ideas of Parliamentary supremacy.’ [11]
Resources:
References:
[1] Ivor Jennings [2] Timothy Endicott [3] Secretary of State for Education v Tameside [1977] AC 1014 (Lord Diplock) [4] R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898 (Sir Thomas Bingham MR) [5] Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 (Greene MR) [6] R v Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477; cf. R v Chief Constable of Merseyside Police, ex parte Calverley [1986] QB 424 [7] Advocated for by Professor Christopher Forsyth [8] HWR Wade, Administrative Law (5th end, Oxford: Clarendon Press 1984) 38 [9] Advocated for by Professor Dawn Oliver, Professor Paul Craig and Professor Jeffrey Jowell [10] Jackson v Attorney General [2005] UKHL 56 (Steyn LJ at [102]) [11] Paul Craig, ‘Ultra vires and the Foundations of Judicial Review’ (1998) 57 Cambridge Law Journal 63, 86-89
Cases Mentioned:
R v Somerset County Council, ex parte Fewings [1995] All ER 515
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