Role of Judicial Review in UK Constitution - Desklib

This article discusses the role of judicial review in the UK constitution, including the seven steps involved in the process of judicial review, the principle of parliamentary sovereignty, and the separation of powers. It also provides advice on bringing a claim for judicial review in specific cases.

Running head: ROLE OF JUDICIAL REVIEW
Role of Judicial Review
Name of the Student
Name of the University
Author Note

1ROLE OF JUDICIAL REVIEW
Part A:
Answer 1:
The process of judicial review can be defined as the process of court proceedings where
the legitimacy of a previous decision given by a public body is reviewed by a judge of higher
court of justice. The procedure of judicial review is applicable in cases where the previous
decision taken by the public authority proves to be unlawful.
In this regard the seven steps involved in the process of judicial review can be emphasized.
1. The process of judicial review is associated with the process of reviewing a decision that
has been previously made by a public body in order to audit the legality of such decision.
2. In this regard, it is noteworthy to mention here that the authorities exercising the
functions of public law can be challenged. Therefore, it is worth noting that there is a thin
boundary between the public bodies and the private authorities as the decisions of the
public bodies are subjected to judicial review while the decisions made by the private
sectors are not subjected to judicial review in general.
3. In order to bring a claim for proceedings of judicial review it is important on the part of
the parties involved to have sufficient interest in the matter.1 However, in recent years the
question involving sufficient interests has not been defined by the Courts. As a result of
liberalization, the Courts were unwilling to dismiss an application on the ground of lack
of standing. In this regard, pressure groups shall be treated as sufficient standing.
Currently, reforms regarding the test of standing are initiated by the Government.
1 Ip, Eric C. "The judicial review of legislation in the United Kingdom: a public choice analysis." European Journal
of Law and Economics 37.2 (2014): 221-247

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4. In order to administer claim for judicial review, an application has to be made within
three months from the date when the issue had at first taken place.2 However, in recent
years such remedy has been reduced to six weeks for the purpose of planning decisions. It
has been expected that judicial review shall be treated as the remedy of last resort in cases
where parties fail to apply alternative methods of dispute resolution.
5. The grounds of judicial review are-
 Illegality, which takes place when the public authority makes the law outside its powers.
 Irrationality, when the public body passes an unreasonable decision.
 Improper procedures, when the public authority fails to make decision according to the
statutory procedures.
 Breach of legitimate expectation, it occurs when the public authority is required to act in
a particular way however, it fails to act according to the prescribed manner.
6. In case of judicial review, the question involving remedies is often difficult to examine.
The discretionary remedies available are-
 Quashing order.
 Prohibitory order.
 Mandatory order.
 Declaration.
 Injunction
 Damages.
7. It is noteworthy to mention here that judicial review has been affirmed as a remedy of last
resort. In Glencore Energy UK Limited v Commissioners of HMRC[2017] EWHC
2 MacKinnon, Danny. "Devolution, state restructuring and policy divergence in the UK." The Geographical
Journal 181.1 (2015): 47-56

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14763 it was held by the Administrative Court that the principle of judicial review is a
remedy of last resort. It was held by the Court that judicial review shall be held as the
remedy of last resort in cases where the methods of alternative dispute resolution fail to
address the issues.
Answer 2:
It is evident that the constitutional system of Britain is based on the principle of
parliamentary sovereignty. According to A.V. Dicey, the decision passed by the Parliament
cannot be challenged by the Court of law. Dicey stated that the Parliament is at the authority to
make legislative amendments. The British courts are not vested with the power of declaring a
parliamentary statute to be unconstitutional by setting it aside. The British constitution can
review a decision taken by any executive or administrative body however, it cannot consider any
constitutional authority of the Parliament to be null and void. Therefore, the process of judicial
review can be rightly applied to decisions taken by the executive or the judicial however such
process cannot be applied to the decision passed by the Parliament.
The rule of law occupies an integral position in the constitutional system of UK which is
unwritten. The principle of rule of law has been applied to all conduct covering the officials of
public bodies.4 The rule of law states that no one is above the law, everyone is equal before the
eyes of law, the laws have always been applied and legal reprisal is available through the courts.
On the other hand, a claim for judicial review signifies a special quality which makes it distinct
from other methods of litigation. In this regard, it is noteworthy to mention here that the
3 HMRC[2017] EWHC 1476
4 Hadfield, Gillian K., and Barry R. Weingast. "Microfoundations of the Rule of Law." Annual Review of Political
Science 17 (2014): 21-42

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procedural elements are covered by judicial review and without it there would have been an
authoritarian state which has been supported by the rule of law from the very beginning.
In United Kingdom, the power of the Constitution is vested with the legislature,
executive and the judiciary. According to the principle of separation of powers the power of
interpreting the constitution is vested with the judiciary, the legislature is vested with the law
making power while the executive acts effectively in enforcing the laws made by the legislature.5
The process of judicial review is concerned with the power of making decision and in
determining that whether the judiciary is acting independently. The separation of powers is not
an unconditional feature of the British Constitution however; the concept of judicial review in
the purview of separation of powers is working efficiently as it helped the judiciary in ensuring
that the powers vested by the Parliament to the executive is not abused or exercised excessively.6
It can be stated that the decision passed by the executive and the legislative can be reviewed by
applying the process of judicial review. Judicial Review justified the decision of the legislature.
It was observed in R v SSHD ex parte Anderson [2002]7 that there was a breach of Article 6 of
the ECHR by the Home Secretary while exercising his judicial functions.
In this regard, it is worth mentioning here that the importance of judicial review still
exists in the Constitution of UK. However, as there is an existence of division of power between
the judiciary and the executive, the traditional view of the Parliament sovereignty diminishes.8
Part B:
5 Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established democracies (or why
has the model of legislative supremacy mostly been withdrawn from sale?)." The American Journal of Comparative
Law 62.3 (2014): 613-640
6 Müller, Jan‐Werner. "Should the EU protect democracy and the rule of law inside member states?." European Law
Journal21.2 (2015): 141-160
7 Hl 25 Nov 2002
8 Swenden, Wilfried, and Nicola McEwen. "UK devolution in the shadow of hierarchy? Intergovernmental relations
and party politics." Comparative European Politics 12.4-5 (2014): 488-509

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1. It was clearly stated in the provisions of Section 1 of the Refuse Collection Act 2017 that
the license shall be declined by the secretary of the state for the purpose of operating a
refuse collection service if such service is proposed to be established within 1 mile of an
existing refuse collection service. In R (Heather) v Leonard Cheshire Foundation9 it
was observed that the decision made by the local authority was unreasonable and
unlawful and therefore claims of judicial review was brought against the local authority
by the residents of care homes. It was observed that the claimants were sheltered in care
homes which were owned by the local authority however; there was a sudden transfer of
the care homes to a private sector which violated their rights and therefore the decision
taken by the local authority was considered to be unlawful by the Court. In Attorney
General v Fulham Corp10 the decision taken by the public authority proved to be illegal
and irrational. In the present case study, it can be observed that Rick’s application in
order to open a refuse collection service in Portsmouth got rejected as he proposed to
open it in a location which is 1.1 mile away from an existing service. It can be stated that
Rick has not violated the provisions of Section 1 of the Act. Therefore the decision taken
by the secretary of the state can be held as illegal and irrational. Therefore it is advised
that Rick must bring a suit of judicial review proceedings against the secretary of the
state.
2. It is evident that Section 1 of the Refuse Collection Act clearly stated no one is entitled to
open a refuse collection service if already one is in existence. Therefore, the second
location in Southampton where Rick wanted to start his refuse collection service is a
violation of Section 1 as the location was situated 0.5 miles away from an existing
9 [2002] 2 All ER 936; [2002] EWCA Civ 366
10 [1921]

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recycling centre. In R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs11 it was observed that the Divisional Court held the decision of the Government to
be lawful for not allowing the occupants of the British Indian Ocean Territory to return.
The rationality of the orders was challenged and a claim for judicial review was bought
before the Divisional Court by the claimants against the Government however, the
decision of the Government proved to be lawful. However, in the present case study it
can be advised to Rick that his attempt of opening a business of refuse collection in
Southampton is unlawful as it violated Section 1 of the Refuse Collection Act 2017.
Therefore, it can be stated that the decision taken by the Secretary of the State is lawful
for not allowing Rick to open a business of refuse collection. In this case, Rick is not at
the authority to bring a claim of judicial review against the Secretary of the state.
3. It can be observed that Rick’s third site in Fareham where he proposed to open his
business of refuse collection was also rejected by the Secretary of the State after
consulting an assessor which has been hired privately. Therefore, in this regard it is
noteworthy to mention here that such intervention of the assessor is unlawful and
irrational. It is the duty of the Secretary of the state to interfere into matters involving the
value of property and the character of the local community. The Secretary of the State
cannot hire an assessor privately to consult such matters related to the state. It has held in
R (Cotton) v Chief Constable of Thames Valley12 that the decision taken by the public
authority was irrational and unlawful as there was an interference of a third party which
was hired by such public authority. It was observed that the decision was taken by the
decision-maker in consultation with the privately hired local body which according the
11 [2016] UKSC 35
12 RegCa 1990

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claimants were unlawful as there involved unlawful delegation of power to a third party.
A claim for judicial review was brought before the Court against such public authority
where the appeal of the claimant was allowed. Therefore, in the present case, it can be
advised to Rick that she should bring a claim for judicial review against the assessor and
the Secretary of the state on the ground of unlawfulness and irrationality.
4. In this case it can be observed that according to the Secretary of the state Rick shall be
entitled to present written appeal and an oral hearing would not be permitted. In this
regard, it is noteworthy to mention here that oral hearing involves short process n which
the claimants are required to consider the facts of the cases carefully. It was held in R (on
the application of G) v IAT [2005] 1 W.L.R. 144513 that a person shall not have the right
to an oral hearing in case of an application which has been refused and therefore no
further appeal cannot be made from an unsuccessful application that has been presented
for judicial review. In a recent case Samia Wasif v Secretary of State for the Home
Department; Mohammed Hossain v Secretary of State for the Home
Department [2016] EWCA Civ 8214 it was observed that the claimants were required to
present a request regarding a decision of the High Court and the Upper Tribunal refusing
to grant permission for the purpose of applying judicial review in order to reconsider the
parties to an oral hearing. It was held that a number of factors should be considered by
the Judges while refusing permission to apply for judicial review to allow oral hearing.
Therefore in the present case study, it can be advised to Rick that he should bring a claim
for judicial review against the Secretary of the state for refusing him to allow oral
hearing.
13 [2005] 1 W.L.R. 1445
14 Samia Wasif v Secretary of State for the Home Department; Mohammed Hossain v Secretary of State for the
Home Department [2016] EWCA Civ 82

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5. The letter addressed to Rick contained the fact that the appeal shall be judged upon by a
panel of local refuse collection experts and one of them is Rick’s former boss Bryan.
Therefore, in this regard, it can be stated that an appeal can only be judged by a higher
authority. In R (Smith) v North Eastern Derbyshire Primary Care Trust15 it was held by
the Court that the patient forum did not have adequate power and authority to make
appropriate decision. However, it can be stated that Rick’s former boss Bryan can be bias
towards him while making his decision. In this case, the law of bias is applicable which
one of the important grounds of judicial review. In R. v. Mulvihill16 it has been observed
that the trial judge did not set aside the conviction of the accused on account of bank
robbery as he had shares in the bank. Therefore, in the present case study there is an
involvement of bias administrative action. Therefore, in the present case Rick is advised
to bring a claim for judicial proceedings against such panel.
15
16 [1970]

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References:
Journals:
Gardbaum S, 'Separation Of Powers And The Growth Of Judicial Review In Established
Democracies (Or Why Has The Model Of Legislative Supremacy Mostly Been Withdrawn From
Sale?)' (2014) 62 American Journal of Comparative Law.
Hadfield GB Weingast, 'Microfoundations Of The Rule Of Law' (2014) 17 Annual Review of
Political Science.
Ip, E, '"The Judicial Review Of Legislation In The United Kingdom: A Public Choice Analysis."'
(2014) 47-56. "The judicial review of legislation in the United Kingdom: a public choice
analysis."
MacKinnon D, '"Devolution, State Restructuring And Policy Divergence In The UK."' (2015)
47-56. The Geographical Journal.
Müller J, 'Should The EU Protect Democracy And The Rule Of Law Inside Member States?'
(2015) 21 European Law Journal.
Swenden WN McEwen, 'UK Devolution In The Shadow Of Hierarchy? Intergovernmental
Relations And Party Politics' (2014) 12 Comparative European Politics.
Cases:
Attorney-General V Fulham Corporation: 1921
Glencore Energy UK Limited v Commissioners of HMRC[2017] EWHC 1476.

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R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429.
R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth
Affairs [2016] UKSC 35.
R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth
Affairs [2016] UKSC 35.
R (on the application of G) v IAT [2005] 1 W.L.R. 1445.
R (on the application of Heather) v. Leonard Cheshire Foundation [2002] 2 All ER 936; [2002]
EWCA Civ 366.
R v Mulvihill [1990]
Regina V Chief Constable of The Thames Valley Police, Ex Parte Cotton: Ca 1990.
Regina V Secretary Of State For The Home Department Ex Parte Anderson: Hl 25 Nov 2002.
Samia Wasif v Secretary of State for the Home Department; Mohammed Hossain v Secretary of
State for the Home Department [2016] EWCA Civ 82.
Smith V North East Derbyshire Primary Care Trust: Ca 23 Aug 2006.