Thursday, August 16, 2007

Judicial Review in the UK

One of the most important facets of constitutionalism is the concept of judicial review, as it is the procedure that determines the legality or illegality of the decision-making process utilized by persons given delegated authority by parliament, among others. In states with written constitutions and well-entrenched concepts of constitutional supremacy, judicial review is accorded much power and reverence as it can invalidate even acts of its own parliament or legislature. It is not so in the United Kingdom, as the Acts of Parliament are conclusive upon the courts, due to the concept of parliamentary supremacy. Courts can only review acts of delegated authority such as bye-laws that were passed and implemented by local authorities in pursuit of a more general act of Congress. If these bye-laws are inconsistent with parent act of Congress, the courts can strike these down and render them void. More so, the acts of public institutions may also be reviewed if they act in excess of its jurisdiction or powers. Insofar as the rule of law is concerned, the concept of judicial review comes to the fore due to the inherent distrust of the discretionary powers of government especially possible arbitrary acts which may be detrimental in the protection of the rights of the people. A mechanism such as judicial review must exist for this purpose. On the other hand, judicial review is indispensable in the separation of powers as it serves as a check on the powers of the executive branch insofar as its delegated authority is concerned. If the executive oversteps the bounds of delegated authority from parliament, the judiciary has the power to strike these acts down. In the exercise of the court’s power of judicial review, there are certain requirements which parties must conform to in order to avail of this remedy such as the requisites that the complained act arises from delegated authority by a statute, the necessity that the complained parties be public institutions, and the existence of a governmental interest in the decision-making power in question.

There are two steps in procedure of judicial review – the permission stage and the substantive hearing stage. There are also time restrictions such as the need for the complaint to be filed within three months after the grounds for claiming judicial review arose, notwithstanding the importance of possessing sufficient locus standi to pursue the case at hand. The remedies then that are available to claimants are in the form of petitions for mandamus, certiorari and prohibition which can all compel the public bodies complained by injured parties to follow the orders of the court when a favorable decision is given.

However, Acts of Parliament sometimes incorporates ouster clauses to shield delegated authority from the purview of judicial review. This practice has always been held as objectionable to the rule of law and usurps the powers of the courts, erroneously premised on the point that judicial review inconveniences government. Nonetheless, even if such ouster clauses exist, the courts are not precluded from exercising their authority of review. One of the more recent controversies on this is on the immigration system, with critics asserting that illegal immigrants shall abuse the law with their applications for review on their cases. Fortunately this part of the bill was struck down.

On the other hand, the most important requisite for judicial review is the possession of locus standi by the injured parties, and the test has always been the necessity of a claimant having sufficient interest in the resolution of the controversy. The claims may be asserted when individual rights are affected, notwithstanding the capacity of groups to assert the claims of its individual members. In the permission stage, the court may already strike down a claim if it is shown that clearly, no sufficient interest lies, but the court may also do so during substantive hearing if the court is not conclusively convinced that the requisite standing is present. In recent cases, standing was liberally construed in favor of persons or groups that do not exactly possess sufficient interest but were merely asserting a public right, such as a taxpayer’s suit, among others, because the merits of the cases were seen as far more important a consideration than a conclusive determination of the standing of claimants.

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