By Lucy Crabtree
Judicial Review is an important process with regards to upholding the rule of law but it is not effective. Lord Justice Brightman and Lord Justice Bingham affirm that the role of judicial review is not to appeal the decision but to review the process by which that decision was made. The investigation into judicial review will be narrowed to Dicey’s theory of the rule of law. This is on account of his theory being formal, meaning that like Judicial Review, it only focuses on the process by which the law is made and applied rather than the content of the law itself.
The Importance of Judicial Review
Judicial Review is an important process for the judiciary since it allows the court to assess whether a decision to punish someone was lawful or not. This upholds the first principle of Dicey’s rule of law that, 'no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. By using Judicial Review, the courts have protected the public from being unlawfully made to suffer as in the case of Secretary of State for Trade and Industry v Langridge. In this case, the public was made to suffer as their right to protection from unfair disqualification was breached when their employer failed to carry out the mandatory requirement procedure of 10 days' notice. Therefore the court invalidated the precedent which had not observed the essential procedural requirements. The case showcases that Judicial Review must be an important process within the United Kingdom as the court can use this process to uphold Dicey’s first principle of the rule of law.
Effectiveness of Judicial Review: Parliamentary Sovereignty
However, I do not believe that Judicial Review is effective in upholding the rule of law. Where Parliament creates legislation that breaches the constitution, it becomes difficult for the courts to use Judicial Review to uphold Dicey’s first and third principles. Despite Dicey’s first principle that the court may only enforce the law that has been established in the ordinary legal manner, the court is nevertheless bound to enforce an unlawful statute. The Human Rights Act 1998 illustrates this where the court may only use Judicial Review to make a declaration of incompatibility against Statutes. While there is an acknowledgment that a statute conflicts with the European Convention of Human Rights, Parliament does not have to repeal that Statute due to Parliamentary Sovereignty. This interferes with Dicey’s first and third principles. Dicey’s first principle is compromised as the court is unable to use the process of Judicial Review to invalidate unlawful legislation. This leaves the public vulnerable to being punished or made to suffer for a breach of law that was not established in the ordinary legal manner. Dicey’s third principle cannot effectively be upheld either since it leaves the Judiciary unable to uphold the constitution even where that statute may breach a convention right.
The Scottish Parliament uses Judicial Review much more effectively because “if there is no compatibility, there is no competence and the judiciary can declare that legislation invalid”. This is more effective in upholding Dicey’s first and third principles because it can ensure that statutes comply with their constitutional obligations. Judicial review within the English legal system is important but not effective in upholding the rule of law when compared to other legal systems since the courts cannot invalidate legislation even where it breaches the constitution.
Effectiveness of Judicial Review: Ouster Clauses
Ouster clauses are also an issue in preventing Judicial Review from upholding the rule of law effectively. They are clauses within statutes that exclude the jurisdiction of the courts. Chief Justice Woolf as he was then made clear that Parliament’s restriction of Judicial Review was “unthinkable” and continued that “there are even limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold”. Over the years though, there have been a number of ouster clauses passed. The most controversial one is the one in the United Kingdom Internal Market Act 2020. King and Tierney criticize this Act as although “judicial review proceedings challenging the lawfulness of the regulations can proceed.” the ouster clause “rather seeks to remove any substantive legal basis for a claim to succeed – and in that sense... goes far beyond any previous ouster clause”. It is a total flaw in our legal system where the Parliament can exclude the very mechanism meant to uphold the rule of law. Judicial review is important but it cannot be effective where it is systematically narrowed and restricted in its scope.
Effectiveness of Judicial Review: The Executive
Another variant of Judicial Review being ineffective in upholding Dicey’s third principle is where the Executive unlawfully abuses its constitutional powers. In the R v Miller Case the Prime Minister breached “The freedom of speech and debates... [and] proceedings in parliament”. Although this breach was unanimously deemed unlawful, the Judiciary could only intervene as far as declaring the Prime Minister’s actions unlawful. Like a declaration of incompatibility, the Judiciary could not intervene beyond that, despite a clear weakness in our constitutional law that allowed prorogation to be abused. Once again, Judicial Review is present but is not effective since the Judiciary cannot uphold Dicey’s third rule of law for fear of usurping the Executive.
If the Judiciary were able to use the process of Judicial Review to intervene where the Executive breached the rule of law there would of course be ‘risks of [Judicial Review] usurping the decision-making function of the executive’. Lord Justice Mustill on the other hand would argue that to fulfill this function, the judiciary must at times step into the territory of the Executive.
There needs to be a shift in the way in which we view Judicial Review. The modern legal attitude towards Judicial Review is that it is a process that cannot be used to challenge statutes or the executive and that Parliament is free to limit Judicial Review where it sees fit. Lord Steyn states that, “There are no exceptions...the judiciary unreservedly respects the will of Parliament as expressed in statutes” and that the relationship between Parliament and the Judiciary is “simple and straightforward”.
But Judicial review is not a process that threatens Parliamentary sovereignty. Parliament has already acknowledged being subject to the rule of law in the statute. Steyn’s oversimplification of our legal system completely disregards the notion that "Both parliament and the courts derive their authority from the rule of law, so both are subject to it and cannot act in a manner which involves its repudiation". Judicial Review is a process to uphold the rule of law so where Judicial Review may be used to intervene in a breach of the constitution, the Judiciary is not overstepping its authority because it is acting as an agent of the rule of law.
Judicial Review is not derived from the authority of the Judiciary but from the rule of law itself. For this reason, Judicial Review is an unquestionably important process in upholding the rule of law. But as it stands, Judicial Review does not effectively uphold the rule of law because it cannot provide a safeguard for the constitution where the breach concerns the actions of Parliament or the Executive.