DISCUSS THE CONSTITUTIONAL SIGNIFICANCE OF THE PROCESS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN THE UK
Discuss the constitutional significance of the process of Judicial Review of administrative action in the UK
Judicial review refers to the power to supervise the activities of governmental bodies on the basis of rules and principles, which may be called principles of 'public law', as opposed to 'private law'. In this sense, to ask whether a body is subject to judicial review is to ask whether its activities are subject to supervision according to rules and principles of public law. This 'supervisory jurisdiction' which is 'inherent', that is to say, it is a jurisdiction which was assumed by the judges rather than conferred on the courts by statute, is to be contrasted with 'appellate jurisdiction'. The common law (that is, the courts) never developed mechanisms for appeals as we understand them today, and all appellate powers are statutory in origin (, 1996, ).
The current understanding of judicial review as derivative of or dependent upon a written constitution misconceives the doctrine as it developed during the formative period of American constitutional thought. Americans today think of judicial review as the process by which judges review legislation to ensure compliance with the United States Constitution and on occasion invalidate laws determined to violate the Constitution (, 2006). This multi-level structure of judicial review evolved over the years into a complex system of constitutional adjudication. Further additions, qualifications, and exceptions to the multi-tier system have been made by the Supreme Court, reflecting the perpetual vicissitudes of constitutional jurisprudence.
It is the Supreme Court’s role to enforce constitutional norms upon the majoritarian branches of government; otherwise they would be completely unbridled. As dictated by the Constitution, majority control should be the predominant feature of our governmental system subject to constitutional perimeters. The purpose of the Court’s independence is to ensure that those perimeters will be honored by all branches of the state and federal governments. Constitutional constraint upon the majoritarian branches of government would be seriously reduced if the Supreme Court did not possess the authority to create meaning for the Constitution. In the absence of a creative power of judicial review, the majoritarian branches of government could move freely into new areas with little or no constitutional restraint. Elimination of the Court’s creativity would destabilize the system of checks and balances that has characterized our government since its inception (, 2001, ).
The boundary liberals draw between the Constitution and politics either exposes contemporary liberalism's limits or ultimately dissolves. Liberals leave no domain for a principled, constitutional politics. Contemporary conservatives have the same problem, although it arises in a different way. If liberals have an impulse to constitutionalize everything, conservatives have an impulse to deconstitutionalize everything. The heart of contemporary conservative constitutional discourse is advocacy of judicial restraint and opposition to judicial activism. True, conservatives leave room for judicial review in the service of the original understandings of the Constitution's provisions. They have rarely done well in explaining to people who do not share their prior political commitments exactly what those understandings were and, more important, how we ought to apply those understandings in the different circumstances of contemporary life (, 1999, ).
The increasing concern of the courts with human rights may be seen as having a constitutional dimension in addition to its obvious importance for the protection of individuals. The perceived universality of human rights gives their protection a wider significance. It was suggested that some judges now think that complaints by individuals against government which have no constitutional or human rights implications are better dealt with in tribunals than by way of judicial review on the High Court. If this point of view gains hold, the enforcement of constitutional principles and fundamental human rights may come to be seen as the prime public law function of the High Court (, 1996, ).
Human Rights Act Legislation, enacted in 1998, brought the European Convention on Human Rights into domestic law for the whole of the UK on October 2000. In the past the use of the Convention was limited to cases where the law was ambiguous and public authorities had no duty to exercise administrative discretion in a manner that complied with the Convention. The Act creates a statutory general requirement that all legislation (past or future) be read and given effect in a way that is compatible with the Convention. Section 3 provides that all legislation, primary and secondary, whenever enacted, must be read and given effect in a way that is compatible with Convention rights wherever possible (, 2002).
One of the general principles of law adopted by the European Court is that fundamental human rights must be respected. Indeed, although the European Convention on Human Rights is not strictly part of EC law, the European Court has made express reference to it in some judgments. It has been argued that English courts should similarly require governmental bodies to respect human rights in general and the European Convention (of which the UK is a signatory) in particular. The European Convention is not technically part of English law, and the House of Lords has held that failure to comply with its provisions is not a ground of judicial review. This is not to say that English law does not respect human rights (, 1996, ).
For example, English courts are entitled to, and do, give very considerable weight to the interests in freedom of speech and personal liberty in applying heads of judicial review. More generally, the courts apply a presumption that legislation is intended to comply with Britain's treaty obligations under the European Convention and other human rights treaties. There are many who feel that human rights would be more securely protected in Britain if there were a legally effective statement of such rights.
The Act requires public authorities – including courts – to act compatibly with the Convention unless they are prevented from doing so by statute. This means that the courts have their own primary statutory duty to give effect to the Convention unless a statute positively prevents this. Section 7 gives the victim of any act of a public authority that is incompatible with the Convention the power to challenge the authority in court using the Convention, to found a cause of action or as a defense. The Act introduces a new ground of illegality into proceedings brought by way of judicial review, namely, a failure to comply with the Convention rights protected by the Act, subject to a ‘statutory obligation’ defense. Secondly, it will create a new cause of action against public bodies that fail to act compatibly with the Convention. Thirdly, Convention rights will be available as a ground of defense or appeal in cases brought by public bodies against private bodies (in both criminal and civil cases). Section 7 imposes a limitation period of one year for those bringing proceedings (, 2002).
The 'protection of the individual' view of judicial review is, therefore, a view which asserts that political and governmental power ought to be exercised to further the public interest, but only so far as is consistent with those political claims of individuals which are embodied in individuals' legal rights or legally protected interests. It is, however, also the case that the power to protect individual rights against undue interference in the name of the public interest entails a power to decide that particular governmental action in the public interest does not constitute an undue encroachment on private rights. Ironically, the most common use of the notion of public interest in administrative law is as a device to resist claims by individuals that their rights have been improperly infringed. We have observed such use of the idea of the public interest in the principle that failure to give a person a hearing will not constitute a denial of natural justice if a hearing would do the person no good or would unduly interfere with the efficient dispatch of government business; in the rule that alternative remedies must be exhausted before a judicial remedy can be sought and in various other uses of remedial discretion; and in the unwillingness of the courts to allow tort actions against regulatory bodies (, 1996, ).
Cooperation received the earliest attention, as a puzzle to be explained theoretically. In most national jurisdictions, accepting supremacy meant abandoning deeply entrenched, constitutive principles, such as the prohibition against judicial review of legislation; direct effect required many judges to set aside traditional rules of standing and recognition, and to evolve new ones. Supremacy forbade the use of the standard dualist solutions to conflicts between national and international law, such as the lex posteriori doctrine and other corollaries of parliamentary sovereignty. Direct effect enables private actors to sue Member States' governments for noncompliance with EC law, including failure to implement EC secondary legislation; such suits potentially pit judges against governments and the parliaments they control. Accepting supremacy thus entailed significant, nonincremental adaptation on the part of national legal orders (, 2004, ).
The two approaches of judicial self-restraint and judicial activism to constitutional adjudication have been operative since the inception of judicial review and have been utilized in varying degrees by each justice who sat on the Supreme Court. Judicial self-restraint is an attitude toward legislative or official acts under review which presumes the validity of such acts and requires a thorough showing of contradiction with some constitutional precept in order to void the government action. Judicial activism is a less hesitant approach to constitutional adjudication which does not value traditional rules governing review (, 1988)
The distinction between judicial activism or restraint is largely framed in terms of the relationship between the judiciary and the popularly elected branches. Judicial activism means "a court's attitude toward the traditional policy-making institutions and its willingness to enforce claims against them. Judicial activism refers to the disposition to interpret rights broadly and to enforce them vigorously against the other branches of government; judicial self-restraint, by contrast, connotes a judicial predisposition to find room within the constitution for the policies of democratically accountable decision makers.
A connected reason for boiling the flesh off the bones of the theoretical critique is that judicial review is an issue for other countries that have a different history, a different judicial culture, and different experience with legislative institutions than the United States has had. For example, when the British debate the relatively limited powers their judges have to review legislation, they are not particularly interested in what the Republicans said to the Federalists in 1805 or in the legacy of Brown v. Board of Education. What is needed is some general understanding, uncontaminated by the cultural, historical, and political preoccupations of each society (, 2006).
Recent research shows that, one year after implementation, the Act had still not had the effect that many had anticipated, in terms either of the number or complexity of challenges on Human Rights grounds. The overall impression that has emerged is that Human Rights arguments are mostly used to add to, bolster or put a fresh slant on pre-existing lines of challenge. The great majority of cases in which a Human Rights point has been raised would have gone forward in any event, most typically in Judicial Review (, 2002).
In the two years since the Act came into force, the judicial system has matched up well to the demands placed on it by the Act. That is the result of a carefully drafted Act and two years of intense preparation by the Government and the Courts. Based on the erroneous belief that the Act would politicise the Judiciary, and detract from judicial impartiality, some called for an injection of Parliamentary scrutiny into the judicial appointments process. That, however, would open the way for Judges to be appointed on political grounds. And I am convinced that the country does not want that, and that it would be wrong (, 2002).
Many cases have revealed that, as with the statute book, much of our common law is already consistent with the Convention. Others have seen the common law evolving to reflect the Convention. The best examples are the cases involving the privacy of public figures, and the balance that must be struck between their right to respect for private life in Article 8, and the Press's right to freedom of expression in Article 10. The case law is still developing, but already we have been reminded of the inherent capacity of the common law to develop and we have seen the Human Rights Act providing both the impetus and the direction (, 2002).
Contemporary constitutional adjudication is characterized by an elaborate system of judicial review composed of multiple levels or tiers of scrutiny. This elaborate structure, built by the Supreme Court, step by step over several decades, is the most significant feature of modern constitutional analysis. By the Court’s own admission, there are at least three distinct levels of judicial review, referred to as strict, intermediate, and minimal scrutiny. But this hardly begins to tell the full story. With the Court adding one refinement and permutation after another, the system has become attenuated almost to the point of chaos. In actual practice, there are at least four levels of scrutiny each with its own twists and turns, if not a sliding scale of scrutiny calibrated to an infinite number of degrees (, 2001).
Strict scrutiny is not the only tier of heightened judicial review; an intermediate tier also exists. As the term indicates, intermediate scrutiny is somewhere between strict and minimal scrutiny. While strict scrutiny starts off with a finger on one side of the scale and minimal scrutiny starts off with a finger on the other side of the scale, supposedly intermediate scrutiny starts off with an equal balance. While strict scrutiny asks if there is a compelling state interest and minimal scrutiny asks only if there is a valid state interest, intermediate scrutiny asks for something in between—an important or substantial state interest. While strict scrutiny asks if the legislative means are absolutely necessary to accomplish their ends and minimal scrutiny asks only if the means are reasonably related to the ends, intermediate scrutiny requires a close, though not perfect, fit between means and ends. Intermediate scrutiny seems to offer more flexibility than strict or minimal scrutiny; it suggests a meaningful form of judicial review, less predisposed to one side or the other of a constitutional issue (, 2001, ).
The call for judicial restraint would finally find fertile soil and blossom—if not explode—into genuine minimal scrutiny as a reaction to the culmination of “Lochnerism” in the New Deal Court crisis. The term “Lochnerism” refers to the Court’s practice, in the early part of the twentieth century, of incorporating extreme laissez faire economic policy into constitutional provisions, thereby invalidating many remedial statutes designed to regulate wages, prices, and working conditions (, 2001, ).
Advocates of judicial restraint have had an important influence on judicial philosophy among more conservative jurists, but recognizing the potential for political reform from within the federal judiciary, several conservative writers have argued that to adopt a jurisprudence of “original intent” or a greater reliance on stare decisis would hinder the courts in thwarting previous liberal activism. Essentially mirroring liberal substantive due process adherents, some conservatives argue that rather than confining themselves under strict constructionist jurisprudence, the courts should redirect substantive due process again to protect property interests and individual rights from government intervention ( & , 2002, ).
Those who advocate judicial restraint also believe the courts should uphold all acts of Congress and state legislatures unless they clearly violate a specific section of the Constitution. In practicing judicial restraint, the courts should defer to the constitutional interpretations of Congress, the President, and others whenever possible. The courts should hesitate to use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making.
Sometimes judges appear to exceed their power in deciding cases before the Court. They are supposed to exercise judgment in interpreting the law, according to the Constitution. Judicial activists, however, seem to exercise their will to make law in response to legal issues before the Court. According to the idea of judicial activism, judges should use their powers to correct injustices, especially when the other branches of government do not act to do so. In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.
Opponents of judicial activism argue that activist judges make laws, not just interpret them, which is an abuse of their constitutional power. The issue, they claim, is not whether social problems need to be solved but whether the courts should involve themselves in such problem solving. By making decisions about how to run prisons or schools, argue the critics of judicial activism, the courts assume responsibilities that belong exclusively to the legislative and executive branches of government.
In defense of judicial activism, the Supreme Court should not abandon broader principles of justice to uphold static, historically bounded views of the Constitution. Pivotal constitutional provisions are necessarily abstract to allow for a certain fluidity of jurisprudence. In fact, conservatives advocating judicial restraint are the revisionists. They argue that the apparently abstract clauses of free speech and due process and liberty and equality should be treated only as coded messages or shorthand statements of very concrete, detailed historical agreements. It is the indefinite meaning of the Constitution itself that forces judges to accept responsibility for interpreting and applying it ( & , 2002, ).
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