Judicial Review and Parliamentary Sovereignty: LLBQLD005 Report

This report provides an analysis of judicial review and parliamentary sovereignty within the context of UK constitutional and administrative law. The report explores the tension between judicial review's role in challenging parliamentary authority and upholding the rule of law, examining cases like Miller and Padfield. It delves into Diceyan principles, the separation of powers, and the evolving concept of governance. The report discusses specific grounds for judicial review, including illegality, irrationality, and procedural unfairness, using examples from shop licensing applications to illustrate these concepts. It cites relevant legal principles, such as ultra vires and Wednesbury unreasonableness, to assess the legality of decisions and the role of the courts in ensuring fair and rational administrative actions. The analysis considers the balance between parliamentary sovereignty and judicial oversight, highlighting the importance of maintaining a just balance for the people of the UK.

Constitutional & Administrative Law
Presentation and Written Assignment
LLBQLD005

Contents
Answer 1......................................................................................................................................................3
Answer 2......................................................................................................................................................6
Bibliography................................................................................................................................................9

Answer 1
As necessary as it is, judicial review challenges Parliament's authority to an
extent because of the United Kingdom's separation of powers structure. This
alliance maintains a bipolarity by setting out an equally threatening
condition. The legal implementation of Sovereignty of Parliament and the
rule of law creates a just balance for all UK people.
In legal proceedings, or during legal examination, it is allowed for the
presumption of Parliamentary Sovereignty to be upheld, which has remained
generally stable. This can be shown in instances such as in which it is
necessary to abridge the power of the executive in order to preserve the
legislature's independence, as in Padfield's works, where decisions are
constantly and endlessly constrained by parliament and the laws. Under the
Diceyan principle of parliamentary democracy, the nation is secure and the
citizens' independence is protected.
We can see a common belief in the courts that Parliamentary Sovereignty in
judicial review is shown by the most recent case with regards to the Miller
in Supreme Court1. These consequences would have vast implications for the
United Kingdom and the European Union, particularly after Brexit. 2Blog
posts as an interpretation as to whether Secretary of State for leaving the EU
could use her discretionary power in 2016, and there were lively discussions
on the Minister of Foreign Affairs, as well as the officials from both the
Foreign Affairs and European Office and the Judiciary, on this matter The
minister's prerogative was found, with a 3:2 vote, and as a result, an act of
Parliament was required. Elliot writes,3 This may well be an indicator of the
degree of respect that is being given to parliamentary sovereignty by the
higher courts seem to be granting to them, and especially clear in the recent
case law which examined the extent of the statute and to which the
prerogative. A sense of "Greatness of the law," as it might be defined,
provides no set rules to be admissible as precedent, a perhaps oblique hint
that the courts go to considerable lengths to save Parliament's rights.
1 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5.
2 Nick Barber, Tom Hickman, Jeff King, ‘Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role’ (U.K. Const.
L. Blog, 27 June 2016) <https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-
the-article-50-trigger-parliaments-indispensable-role/> accessed April 2019.
3 Elliott, ‘The Supreme Court’s Judgement in Miller: In Search of Constitutional Principle’ (2017) 76 Cam-
bridge Law Journal 257.

Under the British, which at this time in theory is a mix of governmental
structures, such as free cities, sultans, lords, and knights, the rule of law
currently allows for Bipolar sovereignty, while also creating an equitable
state for the people. One of Raz's grievances with rule of a law was that it
attached so much meaning to the principle of "right" and "wrong" to things.
What he says is saying is that there should be law. 4 Also, inserting some unit
of currency into this definition would move it away from its monetary purity
and move it into a context in which it will be appreciated. 5 The practical
existence of this theory is limited by the growth of theoretical knowledge. A
system of judicial review does not permit absolute application of the rule of
law, and as such, there will never be a perfect adherence to law. 6 Where
these two items are concerned, the threat to Parliamentary Sovereignty is
countered by the rigidity of the rule of law, the latter has shortcomings.
Though the idea of Parliament is itself expansive,7 Lord Neuberger goes on to
include two additional tenets: democracy and the rule of law. Their Lord
suggested they ignore the precedent to put the will of Parliament and asked,
"What is the use of courts if we can't overrule Parliament?" . 8The rule of law
was observed only in this case, despite its own power; so, even this
individual preferred the Parliamentary Sovereignty. It cannot be destroyed,
but it also does not deprive Parliament of its sovereignty, whatever the
balance may be Critics say he may be seen as taking the side of judicial
advocacy but what he is doing is restoring the credibility and legitimacy of
the courts, and thereby upholding the rule of law.
9It is only normal that the argument over the separation of powers is
addressed only to the United Kingdom because of authority between the
Executive, Legislative, and Judicial branches doesn't apply to all countries.
10Increasingly complex social problems that used to be dealt with solely by
government has caused the administration to move away from its former
policy of operating through the bureaucracy and foreign policy and towards
making a big government that now exists in all of meddling in social affairs.
Consequently, in some viewpoints, it is suggested, has been considered as,
has allowed the weakening of the meaning of government, which has given
4 Joseph Raz, ‘The Law’s Own Virtue’ [2018] Columbia Public Law Research Paper 14.
5 ibid.
6 Endicott, ‘The Impossibility of the Rule of Law’ (1999) Oxford Journal of Legal Studies 1.
7 R (on the application of Evans) v Attorney General [2015] UKSC 21.
8 ibid
9 Daintith, Page (1999). pp. 10–11.
10 Drewry in Jowell, Oliver (eds.) (2011). p. 191.

way to the definition of governance.11This will facilitate a more open-ended
concept of what executives typically does, which is to understand the vast
range of jobs they might be called upon to do. 12Essentially, in public choice
theory, use the term "make the political process more accessible and
transparent." 13For this theory, political actors have the ultimate
responsibility to facilitate interconnections among various sectors, including
judges, rather than favor one over another because they draw on the
Committee on Public Life, which utilizes the same set of rules to apply to
each sector. in a small branch of government, or the above theories all admit
that there are more complex decision-making mechanisms which are not
administered by any department or single agency. This is an important
concept because of the influence which an agency can have over different
departments, and yet need not be necessarily proportional to the
departments to the divisions it is seen to have in other organizations. 14
Lord Mustill however succinctly summarized the modern views on the law in
1995,1516
“This type of state division of power has developed uniquely in the UK,
wherein the legislature, the executive, and the judiciary each have exclusive
responsibility for certain responsibilities and do not interfere with the other.
Parliament may pass whatever laws it believes to be wise, even though it is
not legally binding. As specified in the constitution, the Executive carries out
the administration of the government. the courts ensure that the laws are
enforced, making sure people follow the laws”
Without judicial oversight, the executive would be completely unrestricted
and Montesquieu's idea of separating the powers of the legislature, the
executive, judiciary, as well as the executive would be irretrievably lost17.
When that's the case, no one would be able to differentiate who has
authority to speak and who does not. That will be a terrible blow to the
citizens of the state, since authority is practically non-existent. he claims
that it is a kind of “elected dictatorship" 18when one considers that the
principle of Parliamentary Sovereignty. I have not agreed entirely with this
11 Drewry in Jowell, Oliver (eds.) (2011). p. 192.
12 Daintith, Page (1999). pp. 11–12
13
14 Drewry in Jowell, Oliver (eds.) (2011). pp. 192–193.
15 R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513 at 567.
16 Bradley, Ewing (2007). p. 82.
17 MJC Vile, Constitutionalism and the separation of powers (2nd edn, Liberty Fund Inc, 1998) 15.
18 Speech by Lord Hailsham (British Broadcasting Corporation, 1976).

point of view, and see to believe that this is only true in part because it's said
that Parliament utilizes concession, ratification, and authorship, which are
called ‘beautiful' democracy19.And without having the appropriate
supervision, third-party controls, this should not have been done.
There may be cases where the scales tip to one side or another, however,
judicial review provides for a more equitable and neutral distribution of
power.
Answer 2
In case of Shop A the application was rightly rejected as there was already a
provision S1 that there should be no shop selling legal highs with in 2 miles
of a school and the Shop A that David intended to open was it was just a mile
away from a junior school
In case of Shop B the issue was that the university having adult students fell
into 2 miles of the shop B that was applied for to be opened . The Rule
pertaining to this fact is S1 that there should be no such shop selling legal
highs within 2 miles of a school. In my opinion the rule S1 specifically is
subjected for the students of school that are not adults which has been
illegally used without having power i.e ultra vires , for the decision by the
council .
In our society, the most clear definition of illegality is when a body goes
beyond the limits that it is allowed to do. Illegal activities may be conducted
in contradiction with enacted or circumvented laws, regardless of their
extrinsic. In April 2013, Npower succeeded in taking legal action when it
proved that the ordinance which was in dispute with local plans and national
policy would violate its density scheme for wind turbines was not to be
changed, due to Milton Keynes' old minimum separation requirements on
energy infrastructure.20
Doing anything for the wrong reasons could be illegal as well as
inappropriate. In such a more general terms, an unlawful decision by the
question of the business council, how it would be illegal for Shell to do trade
19 Jeff King, ‘The Democratic Case for a Written Constitution’ (University College London, 2018) <https://
www.youtube.com/watch?v=JAqL-v0kOq8&t=1446s> accessed April 2019.
20 R (RWE Npower Renewables Ltd) -v- Milton Keynes Council [2013] EWHC 751.

in South Africa because of its interests in South African apartheid would
apply equally to everyone. While that would benefit race relations may have
been a sufficient ground for the resolution, Shell was actually making a
political decision with regards to their activities in South Africa when they
agreed to divest themselves of their assets. This had no bearing on it,
serving instead to further their own ends.21
So therefore, In case of Shop B the judicial review can be applicated on
ground of illegality of the provision used by the city council without having
powers as the provision S1 was for subjected to school students but Shop B
fell into 2 miles of a university.
In case of Shop C the issue is that the council suggests that the value of the
property nearby the shop C would be undermined and will tend to fall when
the Shop C is in operation. There was no such rule and clause in the The
(fictitious) Legal Drug Shop Act 2018 that would stop anyone from opening a shop on the basis that it
would effect the property value of the locality.
One of the main complaints about decisions is that they are flawed is on the
basis that they are unreasonable or irrational.
As in case at dispute, a municipal authority issued a movie license in
accordance with legislation giving it the power to enforce the conditions it
considered fit22. A license has been issued provided that no children as
young of fifteen are allowed to performances on Sundays with or without an
adult. The authority was not unreasonable. This was maintained. The Court
has only been required to determine that the authority had considered
concerns that it should not take into consideration, or had overlooked
matters which it should have considered. The courts have increased the
standard for unfair or irrational behaviour. To avoid evaluating decisions of
their own merit will take them beyond their competence and so they choose
not to do so.
It is important to identify questionable decisions that are "so inconsistent
with commonly held notions of morality that only a thinking person could
possibly come to them" or "so illogical" advised that only a mentally ill
individual could've conceived of. The severe forms of the test have been
21 R -v- Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 ALL ER 938.
22 Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948] 1 KB 223.

criticized but the fact remains that a successful judicial appeal is difficult to
achieve based on irrationality or unreason ability.23
Also as in the Wednesbury Corporation case , it was known that the appeal
court in Britian passed out a rule that the courts and judges can only hinder
in any act of executive power if it be exposed that the authority did break
contravene the law and also the fact that that the influence of the courts to
intervene in such matters is restricted, excluding wherever the will has not
remained to be exercised inside the four bends of well-known legal
principles. this is a clear indicator of how the judiciary viewed the issue
So therefore, in case of Shop C basis of application was rejected but there
was unreasonableness and irrationality involved in it. Thus, the judicial
review can ben on grounds of irrationality and unreasonableness.
In case of Shop D there was procedural unfairness that was noted in the
judgement to reject Shop D application. Sandra was biased and had interests
in opening a shop selling legal highs. And it is deemed that this is the reason
why she concluded an inspection to be a failure. Sandra had biasness and
also conflict of interest in the inspection carried out for Shop D.
Even if the decision itself was fair, one can petition may later successfully
reverse it if one believes that the procedure was highly irregular. One might
believe that an unbiased person had made the decision when they aren't
aware of the fact that they were biased. Either a judge who is required to
hear anyone's case may have simply refused to allow anyone the
opportunity to make claims, or they may have found those that were actually
being made unsatisfactory.
The rules under English law require a minimum of justice. This definition is
built on the principles of inherent fairness and fairness based on nature. In
procedural terms, the "im-propriety", or rules against bias, the "the twin
foundations" are, first, ensuring objectivity and fairness and, and, second,
having the opportunity to be heard24. The right to be properly and
adequately informed of the basis for a decision is also amounts to procedural
fairness.25
Although overt bias is uncommon, bias is a determinative factor in keeping a
decision-maker from making a proper decision. What is more common is
23 Council of Civil Service Unions -v- Minister for the Civil Service [1985] AC 374.
24 Kanda -v- Government of Malaya [1962] AC 322.
25 Magill -v- Porter [2001] UKHL 67

where visible bias is concerned is the bias. This Court determines whether
there is a "a strong chance of prejudice" of bias on the part of the part of the
defendant's lawyer. The other interpretation is to say, "Whether or not the
fair-minded and honest analyst who is well-informed has weighed the truth,
he or she would inevitably reach the conclusion that there was a strong
likelihood of bias on the [of the decision]."26
Therefore, where the chair of a planning committee was found to have a
strong personal affinity with developers, obvious prejudice was
discovered27.However, an adjudicator was found to be impartial in cases
where he had decided on the issue previously and who had also spoken with
the attorney for one of the parties in a previous instance, even though he
had himself found he was impartial in a telephone call with the opposing
party.28
As a right given to every person to be given the opportunity to be heard, the
rights to be heard in criminal and asylum cases often applies to commercial
scenarios Currently, someone able to show that his or her right to be heard
was ignored in a faulty mediation procedure has the ability to initiate a legal
action for court review. The decision-making process can be compromised if
all information is not considered and all avenues are not pursued; it is
impossible to produce an effective conclusion when all sources of
information are blocked.
In March 2013, HS2 Action, a non-member organization operating in
partnership with other activist organizations, sued to challenge the legality of
the compensation policy, and valuation scheme for development sites
located within the HS2's project planning area, were successful in their case
and in a ruling to have the state mandate invalidated.29 the court decided
that the consultation period was contrary to the United States Constitution
details had been inadequate, both the government and the claimants had
failed to make some attempt to understand the overall picture of the
schemes and both had failed to give proper consideration to the concerns of
the stakeholders
Although the obligation to provide reasons for one's action has been well
established, there is still a wide body of case law that is in support of it. The
logic behind reasonable and deliberated decisions is an essential: It helps
26 Magill -v- Porter [2001] UKHL 67
27 R (Ghadami) -v- Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24.
28 AMEC Capital Projects Ltd -v- Whitefriars City Estates Ltd [2004] EWHC 393 (TCC).
29 R (Buckinghamshire County Council and Others) -v- Secretary of State for Transport [2013] EWHC 481.

plaintiffs to determine if the decision has been taken for no reason at all or
for illogical reasons.
Bibliography
R (on the application of Miller and another) v Secretary of State for Exiting
the European Union [2017] UKSC 5.
Nick Barber, Tom Hickman, Jeff King, ‘Pulling the Article 50 ‘Trigger’: Parlia-
ment’s Indispensable Role’ (U.K. Const. L. Blog, 27 June 2016) <https://uk-
constitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-
pulling-the-article-50-trigger-parliaments-indispensable-role/> ac-
cessed April 2019.
Elliott, ‘The Supreme Court’s Judgement in Miller: In Search of Constitutional
Principle’ (2017) 76 Cambridge Law Journal 257.
Joseph Raz, ‘The Law’s Own Virtue’ [2018] Columbia Public Law Re-
search Paper 14.
ibid.
Endicott, ‘The Impossibility of the Rule of Law’ (1999) Oxford Journal of Le-
gal Studies 1.
R (on the application of Evans) v Attorney General [2015] UKSC 21.
ibid
Daintith, Page (1999). pp. 10–11.
Drewry in Jowell, Oliver (eds.) (2011). p. 191.
Drewry in Jowell, Oliver (eds.) (2011). p. 192.
Daintith, Page (1999). pp. 11–12
Drewry in Jowell, Oliver (eds.) (2011). pp. 192–193.
R v Secretary of State for the Home Department ex parte Fire Brigades
Union [1995] 2 AC 513 at 567.