Introduction:
"With the Post Office Scandal raising public awareness of the corruption within the Judiciary, innocent people put in prison by false allegations and fabricated prosecution claims, it draws me to reflect if there are any legal mechanisms open for litigants to seek justice.
This led me to look at the Judicial Review process. I wrote this law essay to critically evaluate the pros and cons of Judicial Review in the publics interest in the hope we can restore trust back into the legal system in the UK". - Sian Gissing-McMeel
This essay will critically evaluate if, in the UK, judicial review is sufficient to defend the individual against the arbitrary actions of the executive. Furthermore, it supports the statement that judicial review is a sufficient legal mechanism to defend arbitrary executive actions because it gives people the final opportunity to seek effective remedy against the executive body by a quashing order, prohibiting order or mandatory order. Additionally, it allows seeking justice against any public body that has sought a decision against a person, interest group, trade association, trade union, charity or limited company unlawfully by illegality, irrationality or procedural impropriety breaching their Constitutional Human Rights. Moreover, it examines the legal framework and two case laws to support the merits and arguments supporting the statement that judicial review is effective and one case where it was ineffective. Finally, it will conclude why judicial review is not a hundred per cent guarantee but is still sufficient to defend arbitrary executive actions.
Main Body:
This paragraph will illustrate how judicial review is regarded as a last-resort effective remedy for any applicant who has exhausted all the complaints procedures, alternative dispute resolution, and private claims in tort law where there was a breach of duty of care by a statutory body. For instance, this is evident in case law, which is the first evidence in this essay supporting the argument that judicial remedy is effective. As seen in (R v Cheif Immigration Officer, ex p Kharrazi [1980] WLR 1396, 1980), it was unreasonable for the applicant to use the statutory legal framework of 's13 Immigration Act 1971.' [1] as he would been deported back to Iran in the middle of an ongoing war to seek permission to return to the UK. This meant that there was a grave risk of being hurt or injured because of the ongoing war in Iran at the time. The immigration officer's decision was considered unreasonable using the Wednesbury principle. However, the applicant had to prove his exceptional circumstances to seek judicial review permission. He did, and it was held that the immigration officer trying to deport him into a country of war was a breach of the home office policy and, therefore, an abuse of process. The ‘Kharrazi’ case supports the statement that judicial review was sufficient and did defend the individual against the arbitrary actions of the executive. This is the first evidence supporting that judicial review is sufficient to defend an individual against arbitrary actions of the executive.
[1] S13 Immigration Act 1970 https://www.legislation.gov.uk/ukpga/1971/77/section/13/enacted
This paragraph will now concisely explain how judicial review has evolved and is embedded within the United Kingdom and European Court on Human Rights Constitutional legal framework, and makes the point that a person's civil liberties and human rights are protected to defend them against any executive arbitrary actions. In 1997, the Order 53 Rule of the Supreme Court was established when applications for judicial review were considered. This was superseded by the Senior Accounts Act 1981; Judicial review is the legal mechanism that gives the people the power to hold the government accountable. Judicial reviews are overseen by the Administrative Courts, using ‘Civil Procedure Rules PART 54.'[1]. Furthermore, judicial review allows the courts to enforce the rule of law by controlling, regulating, checking, and adhering to the person's natural justice using the rule of law. Sometimes, the executive exerts too much power and control over the person and makes wrong, unlawful decisions, and a person becomes a victim of the abuse of power and process. The definition of victim is found in the legal framework of ‘s7 Human Rights Act 1998.'[2], and the person is directly affected by the unlawful action of the executive, which also breaches 'Article 37 of the European Convention on Human Rights.'[3]. A good example of this is the 'Deprivation of Liberty' case law ' (P v Cheshire West and Chester Council, 2014)’ where human rights were being considered in a judicial review application against the local council, which was the public body. The two people who were disabled were being deprived of their liberties by not being allowed to leave the care home, which breached their Article 5 (4) ECHR. In the judgement, LJ Hale stated held at para. 45 that "it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race." [4]. This second piece of evidence supports the argument that judicial review is sufficient to defend individuals against arbitrary actions of the executive.
[1] Part 54 Judicial Review - https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part54
[2] The Human Rights Act 1998 s7 - https://www.legislation.gov.uk/ukpga/1998/42/section/7
[3] Article 37 European Convention on Human Rights - https://www.echr.coe.int/documents/d/echr/Convention_ENG
[4] P v Cheshire West and Chester Council [2014] UKSC 19 https://www.bailii.org/uk/cases/UKSC/2014/19.html
With regards to giving a brief description of judicial review and illustrating the definition, this is evidenced in Lord Woolf’s reference to judicial review in a BBC 4 radio interview back in 2008. He referenced that judicial review is a means by “which the public can hold public bodies to account for their actions” (Law in Action, 2008). There is a threshold test for judicial review, which relies on meeting three categories. The first is illegality, meaning the decision by the executive or judiciary is illegal. In effect, the public decision-maker did not act lawfully. The second is irrationality, meaning the decision of the executive or judiciary is irrational, and no reasonable, sound-minded, everyday person would agree or reach the same conclusion. The third is procedural impropriety, defined by Lord Diplock as “failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision."[1] as seen in the ‘GCHQ’ case ‘ (Council of Civil Service Unions v Minister for the Civil Service, 1984), meaning when the executive did not adhere to their policies or procedures in place, they did not act with fairness. These three grounds for judicial review became known as the Wednesbury principle. Before 1980, people had to make claims through common law courts if they could prove the public body or decision maker acted ultra vires; they brought these claims through Tort or Contract law, which bound the hands of the judiciary in holding the public bodies accountable to some degree. The courts were limited by the Separation of Powers and the limitations on their orders, such as quashing orders, prohibition orders or mandatory orders. It was only in passing the 'Supreme Court Act 1981.'[2], moreover, this later became the ‘Senior Courts Act 1981’[3] gave the judicial review power on a statutory footing by use of the common law power found in ‘s29, 1A Senior Courts Act 1981’[4] where parties are defined and given guidance on the person's right to bring a claim if they have sufficient interest in the matter and application being brought to judicial review. This change in law gave people the opportunity to bring applications to judicial review if the person felt that the complaints procedure against the public body had been exhausted, that Alternative Dispute Resolution had been denied and that the courts breached the three categories set within the Wednesbury principle. Judicial review allows people to have these issues revisited with a fresh set of eyes, presenting evidence of how the executive is acting arbitrarily, which breaches the person's Constitutional Human Rights. However, it is not always so easy and simple to seek remedy against a public body for breaches of Constitutional Human Rights, and in some cases, there is a very clear breach of the executive and judicial review finds otherwise.
[1] Grounds for Judicial Review – procedural impropriety https://www.lexisnexis.co.uk/legal/guidance/grounds-of-judicial-review-procedural-impropriety
[2] The Supreme Court Act 1981 https://www.legislation.gov.uk/ukpga/1981/54/contents/enacted
[3] The Senior Courts Act 1981 https://www.legislation.gov.uk/ukpga/1981/54/contents
[4] S29, 1A The Senior Courts Act 1981 https://www.legislation.gov.uk/ukpga/1981/54/section/29
That leads to the final case this essay will look at. This essay does support the statement that judicial review is effective. However, we still have to look at what happens when a judicial case review does not provide an effective, sufficient defence. The case is 'Austin v Commissioner of Police for the Metropolis [2009] UKHL 5' (Austin v Commissioner of Police for the Metropolis, 2009). In this case, peaceful protesters were marching in London on 1st May 2001, when the police cornered off three thousand protesters for seven hours, with no access to water, no access to food and no access to shelter. The Wednesday principle would suggest that this is a deprivation of liberty and that the actions of the police are irrational and illegal. Even the average person who is fair-minded and rational would maybe think this action of the police was unfair and unreasonable to corner three thousand people for seven hours without access to simple things like food, water and shelter and their liberty not to be detained without knowing why, this is found in the legal framework Article 5 ECHR.[1] . However, the House of Lords judgement[2] found otherwise, that the police acted in the interests of the community and did not breach the people's Constitutional Human Rights Article 5 ECHR. This meant that three thousand people had an experience that any rational, reasonable, fair person would have felt was traumatic and scary for seven hours. In this example, the judicial review was not an effective defence against the arbitrary actions of the executive, in this case, the police.
[1] Article 5 – ECHR https://www.echr.coe.int/documents/d/echr/Simplified_Conv_ENG
[2] House of Lords Judgement ‘Austin v Commissioner of Police for the Metropolis 2009’ https://publications.parliament.uk/pa/ld200809/ldjudgmt/jd090128/austin-1.htm
Conclusion:
In conclusion, looking at whether judicial review is an effective defence for a person against the arbitrary actions of the executive, we see in the two cases presented within this essay (R v Cheif Immigration Officer, ex p Kharrazi [1980] WLR 1396, 1980)’ and ‘ (P v Cheshire West and Chester Council, 2014), judicial review was effective as a defence for the persons. Judicial review effectively applied the correct laws and procedures where prior to the person's judicial review applications, the public body’s actions were irrational, illegal and procedurally incorrect. In reviewing these two cases, the judicial review ensured that natural justice and the rule of law were upheld, which protected the person's Constitutional Human Rights. Judicial review was effective. Although, in contrast, there is evidence that judicial review is not a hundred per cent guarantee of defence for the person, to summarise, this essay still supports the argument that, in most cases, it is effectively a very positive legal mechanism for people to defend arbitrary actions of the executive.