Judicial Review and the Rule of Law: Critical Essay

Judicial review has been a fundamental aspect of the rule of law in acting as a check for the government by the courts. The question arises however as to the extent to which judicial review has a place in the English judicial system. This issue has arisen more recently as a result of the Independent Review of Administrative Law and the initial response it received from the government regarding the future of judicial review in the English legal system and sparks the question as to whether judicial review merely exists on the terms and for as long as it is tolerated by Parliament. This would particularly be an issue in situations where the government continues to find itself on the receiving end of adverse judicial review decisions by the courts which could potentially lead to an attempt to alter or weaken the function of judicial review.

With parliamentary supremacy in mind, an action like this on behalf of the government could be argued to be completely within their power. As per his well-known definition of parliamentary sovereignty, A.V. Dicey stated: “The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions”. He later added: “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of as having a right to override or set aside the legislation of Parliament”. This statement essentially forms the argument that Parliament can make any law that it chooses to make and that nobody, including the courts, can interfere or object to this which of course challenges the whole idea or function of checks and balances.

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The significance and power of legality are what protect individuals and entities from any form of illegal or unjust actions as this helps to defend themselves in lawsuits. All legal systems must have a means of reviewing their legality to ensure their legitimacy and hence, the European Union has developed many methods to do so which are reviewed by the EU courts.

According to Lord Bingham, the rule of law has no definite meaning as such, and hence this creates room for questionable debate in the academic field. However, he has divided the rule of law into two groups where each group has multiple contradicting theories as well: the formalist or thin rule of law and the substantive or thick rule of law. According to the first approach, the involvement of the judiciary can be minimized as the rule of law has been conceptualized in a way that is too bereft of substance to produce just consequences and not focus on the content. This concept states that the law is fair for all and to attain justice one can simply follow certain rules to comply with the rule of law. The thick rule of law not only considers the form of law but also the reasoning (substance) wherein the judges are practical and open to stimulating any reasonable development. According to Dworkin and Allan's substantive view, the rule of law inherently protects certain or all individual rights.

Another legal theorist, Dworkin has argued that authorities should determine constitutional issues based on the best theory of justice, which is fundamental to determining what rights individuals now have. Law propositions are valid if they are based on principles of justice, fairness, and procedural due process that give the most constructive interpretation of the community's legal practice. Dworkin acknowledges the above-mentioned formal concept of the rule of law, referring to it as the 'rule book' model. This subsequently means that the government should never utilize its authority against individuals unless it conforms with regulations that have been established in advance and made public. However, it is understood that individuals should equally recognize a rights-based understanding of the rule of law. The aim of governing by an accurate public understanding of individual rights is the rule of law. According to this perspective, individuals have moral rights and obligations toward one another, at the same time, have political rights against the state, which should be codified in positive law so that citizens can use the courts to uphold them. This does not imply that this perspective of the rule of law is compatible with a single notion of justice or liberty. It does, however, imply that it is not self-contained in terms of the specific philosophy of justice or vision of liberty.

Likewise, Joseph Raz, Professor Lon Fuller, and many other legal theorists have many opinions regarding the rule of law however, A.V Dicey’s theories and principles are some of the theories that are to date being followed. According to A.V Dicey, a jurist, even the public authority does not have the right to act in a manner that may conflict with the interest of individuals’ rights or freedom, unless Parliament has explicitly given them the right to do so. The rule of law is one of the primary common laws established by Dicey hence, using his and a blend of other theorist principles the rule of law has established many elements some of the fundamental elements are as follows:

• Abhorrence of arbitrary power. “No one is above the law, and everyone is subject to the law, and all are subject to the same law administered in the same courts”. Therefore, all individuals and entities are seen as equal before the law and no special exceptions are considered. This element states that the famous ultra vires doctrine can be imposed on all government bodies and officials. Moreover, one cannot be punished or perceived to be guilty unless there has been a breach of law until then heshe would be seen as innocent until then.
• Formal court system. The law must be created in a manner that has little to no discretion and ensures consistency. This enables individuals to act in a certain manner over a period and their actions can be easily justified based on the predefined rules. A very rational yet effective means of evaluating actions through stable procedures.
• Equality before the law. This element ensures that no culprit can escape the repercussions of the law just because of higher power or wealth. A fair trial must take place for the person in question, regardless of their gender, socio-economic class, wealth, religion, and so on. For instance, jail bail is a legal right if approved by the court, so a poor individual must also be able to avail of this right just like a wealthy person would be able to do so.
• Separation of powers and judicial independence. The separation of powers within the government body ensures that there is no power abuse as the three arms of the government have equal power and rights. This element states that the judiciary must be independent of the other arms and have the liberty to give its verdict with no external influences. It also states that all public bodies must act within the law, and none should try to breach the law with illegality.

The relationship between both judicial review and the rule of law is examined by assuming the rule of law is an essential component to stand up a strong and stable government that benefits its citizens or people of country. By the rule of law, society is governed by rule-based decision-making, contrary to arbitrary adherence to administrative bodies. Consequently, any exertion of public authority must first adhere to the legal standards approved by the people who will be impacted by the exertion of that power, and according to this concept, arbitrators must be allowed to objectively understand and enforce laws under society's goals to have the rule of law. By doing so, nations can be observed to see what circumstances favor their development, utilizing this as a preliminary step, and see how nations have formed judicial review.

Thus, in consideration of the issue of judicial review and whether it is a durable feature of the Constitution, a question inevitably arises about the extent to which judicial review is able to withstand legislation enacted by Parliament that may attempt to impose limitations on it in any way. Parliament’s response to the Independent Review of Administrative Law demonstrates a clear basis for the assumption that judicial review is questionably variable, and is vulnerable to any innovations or changes that Parliament may impose. The government's response appears to contain issues that would potentially bring about some significant implications for the rule of law. It appeared that the government contemplated a report with a wide range of recommendations. The first of these recommendations was the codification of the grounds of judicial review, which could involve limiting them or possibly removing some of them together. The recommendations also visited the possibility of restricting justiciability and thus limiting the range of issues that courts are allowed to consider and further contemplated limiting the effective remedies, including by manipulating the concept of nullity. It also envisaged narrowing the scope of collateral challenge whereby unlawfully administered decisions could be indirectly questioned in criminal and private law proceedings. Further, the consideration of limiting the rules on standing to prevent certain parties from bringing judicial review claims was explored as well as the possibility of restricting rights of appeal. It can thus be seen in terms of the reference the government set that these proposals or recommendations would create a wide set of changes to the law of judicial review.

Overall, the IRAL’s report was very measured and balanced and the recommendations that it made were somewhat modest. The author of the report stated: “The government is undoubtedly entitled to legislate in relation to judicial review, and may well be justified in doing so in certain circumstances. None of the judges who provided submissions to us called this into question. Although there could be said to be an element of conventional law reform about some of our proposals, any decision to legislate more widely will essentially be a political one”. Thus, it appears that the IRAL was not attempting to question the possibility of deciding to reform or limit judicial review, but rather – whether or not that possibility is allowed to be exploited is ultimately a political decision.

In response to this notion, the government placed particular emphasis on the notion of parliamentary sovereignty and stated: “While the standard grounds of judicial review are default conditions that Parliament intends to apply to the exercise of any power, these are just defaults and Parliament is completely free to add to or remove from them in specific cases. For example, Parliament can add duties to consult, to give reasons, to conduct impact assessments, and to explicitly consider certain factors. But Parliament can also, explicitly or implicitly, take away from the defaults, i.e., create a body with plenary powers that are not subject to review on the ground that the decision is unreasonable or involved the taking into account irrelevant consideration”.

It is clear here that Parliament placed considerable emphasis on parliamentary sovereignty and on the facility this affords Parliament to remove requirements to abide by the standard that judicial review would normally apply. At the same time, the government’s comment on the rule of law states: “This is not to say, however, that the courts should not have a role in developing the application of the rule of law in judicial review – for instance in the interpretation of the statute, the courts will assume Parliament wishes decisionmakers not to act unreasonably and be amenable to review on a range of grounds emanating from the common law unless otherwise stated in the statute. But it cannot be emphasized enough that Parliament is the primary decision-maker here and the courts should ensure they remain, as Lady Hale put it, 'the servant of Parliament'”.

This seems to ultimately state that while parliamentary supremacy and the rule of law are both considered important constitutional principles, ultimately, one is more important than the other. The emphasis appears to lie on the fact that Parliament is sovereign and is the primary decision maker and that the courts, therefore, are the servant of Parliament, and by implication, the court cannot refuse to adhere to what Parliament has said in legislation by relying on the rule of law or any other principles. This concept is not without fault and appears to place Parliament in a position where they are essentially capable of overriding anything that serves as an obstacle to its supremacy, including the rule of law and the key principles and foundation of judicial review that sprang from the rule of law.