Parliament and the Courts: the role of judicial review in the UK © Dr Nigel Forman CPS Seminar 15th March 2012

Introduction Officially British lawyers sometimes refer to the UK level political institutions as ‘the High Court of Parliament’ - comprising the Monarch, Lords and Commons The judgements of other courts, even the Supreme Court, have to be compatible with what Parliament decides Parliamentary sovereignty has been challenged by the Human Rights Act 1998, so Section 4 of the Act includes a ‘declaration of incompatibility’ which comes into play if and when a Parliamentary measure is deemed to be incompatible with the European Convention

Judicial review Judicial review is described as ‘a means by which the Courts can supervise how Ministers, Government Departments and other public bodies exercise their powers or carry out their duties’ Some statutes (e.g. the Freedom of Information Act 2000) have extended the definition of ‘public bodies’ to include public, private or voluntary institutions which discharge public functions This increases and extends the impact of judicial review and makes it more significant than before

Judicial review as an influence upon Government policy Ministers propose public Bills which, with Parliamentary approval, become statute law. In doing so, Ministers and their advisers are mindful of the need for: - clarity in the wording of statutes & statutory instruments - compatibility with the stated purposes of the law in any Ministerial decisions taken under the law - consistency with the purposes, contents and limits of the law in any subsequent action taken to implement the provisions of a statute or a statutory instrument.

Avenues for judicial review In the event that Ministers (or civil servants and others acting on behalf of Ministers) transgress the law, the litigants (e.g. individuals, corporations, voluntary bodies) may be given leave to challenge Ministers in the High Court: for going beyond their legal competence (ultra vires); for acting unreasonably (contrary to the Wednesbury rules) for acting disproportionately (when compared with ECJ case law) for failing to take action which they should have taken (via an Order of Mandamus).

The normal consequences of judicial review In view of the political or constitutional importance of such challenges, Ministers and their legal advisers usually contest them in the Courts Such cases may go all the way to the Supreme Court for final decision (if either side is given leave to appeal) Cases of judicial review reach the highest level only if they are thought to raise major points of law which need to be determined or matters of overriding public interest which need to be clarified.

Avenues for judicial review Ministers can overturn the Supreme Court and have the final word in these matters if there is the legislative time to debate them and they can persuade Parliament to pass further legislation which amends or overturns the decisions of the Law Lords This has happened very rarely - for example, in the Trade Disputes Act 1906, the War Damage Act 1965 and the Transport Act 1983 On the whole Ministers abide by Supreme Court rulings and adjust or amend legislation accordingly - if necessary by using a ‘declaration of incompatibility’

The European dimension of judicial review Since the UK joined the European Communities in 1973, the provisions of the European Communities Act 1972 have ensured that E.C. jurisprudence is applied in this country - e.g. - the principle of subsidiarity which encourages Ministers to restrain any tendency to take action at EC level when action at a lower level would suffice - the principle of proportionality which encourages Ministers to limit their legislative or administrative action to what could be supported by ECJ case law

Consequences of judicial review for British government Ministers and their advisers are much more careful than they may have been in the past to limit the risk of challenge under judicial review: - by clarifying on the face of statutes, in explanatory notes and even in contextual remarks the nature and extent of the legal powers they are creating - by insisting that civil servants and legal advisers have arrangements in place to warn them and their successors when they may be at risk of ‘misdirecting themselves’ in the decisions which they recommend

Concluding observations Judicial review has an important and growing role in supervising and limiting the exercise of power by the Executive (The judge over your shoulder, March 2000). In 1974 there were 160 applications for leave to seek judicial review in England and Wales By 1998 the equivalent figure was 4539 By 2005 the total number of applications received was 5382, so the trend has been clear Judges are increasingly influential in the UK as compared with the politicians in Parliament