Ken Foster
September 29, 2006
PSCI 3351 Comparative Courts and Law
The United Kingdom
Chapter 5
Feldman, David 1988. “Judicial Review: A Way of Controlling Government?.”
Public Administration 66: 21-34.
Many constitutional systems throughout the world utilize judicial review as a means of balancing
the decision-making power of their legislative branch. Traditionally in the United Kingdom, the
opportunity for judicial review by the courts has been largely absent. However, several recent
landmark decisions have introduced judicialization of politics and have begun to sow the seeds
of judicial review which is beginning to challenge the government’s role in British society.
In Maurice Sunkin’s essay on The United Kingdom I have summarized those landmark
decisions. David Feldman’s article provides additional insight into the need for judicial review as
a means of arbitration to settle disputes over Parliamentary law.
In The Global Expansion of Judicial Power, author Maurice Sunkin’s essay asserts that with the
absence of judicial review of primary legislation, courts and law have traditionally played a
marginal role in political life. Recent developments in some court cases demonstrate the
beginning of an increase use of judicial review. Sunkin provides several examples (discussed
below) to support this point.
As an example, prior to the late 1970s judges did not interfere with prison disciplinary
procedures. However, in one decision, the Court of Appeal asserted jurisdiction to review the
disciplinary decisions of the Prison Board of Visitors. The Court stated that prisoners should
retain their civil rights while in prison. The Board of Visitors has a duty to allow legal
representation of prisoners if warranted. These decisions were reinforced under the European
Convention on Human Rights.
Another decision involving the Court of Appeals was in the City Panel on Take-overs and
Mergers. The Court of Appeals stated that this case could be judicially reviewed. The Court of
Appeals justified its decision on the grounds that although the panel did not derive its powers
from a public source, such as statute, its functions are of public importance and it therefore
operates within the public domain.
From the perspective of constitutional law, perhaps the most significant extension of judicial
review was made possible by the decision of the House of Lords in one particular case (GCHQ).
Acting under prerogative powers, the Prime Minister as head of the Civil Service ordered
workers to relinquish their trade union memberships.
The court ruled that although the Prime Minister had acted under prerogative powers in regards
to GCHQ, the case did not mean that the decision could not be reviewed. The court accepted that
there had been unfairness but was not prepared to quash the action because of the government’s
claim that it had acted in the interests of national security. However, the judges’ deference to the
Prime Minister’s national security defense suggests that extensions in the potential scope of
judicial review are not always necessarily at the expense of the government.
By the early 1980s, it became obvious that central government was becoming vulnerable to legal
challenge (Kerry 1983, 1986). Local government litigation was one of the areas in which
government appeared particularly vulnerable. Due to the aggressive use of the law, this led to a
collapse of the traditionally flexible structure within which local and central government could
bargain and negotiate. An example of this involves England’s Social Fund.
The Social Fund was introduced amid considerable political controversy. When the fund was
originally presented to Parliament, there was no provision for appeals against decisions rendered
by Social Fund officers. After much public outcry, Parliament introduced a system for reviewing
decisions that was similar to the principles of judicial review. The fund is an example of
judicialization being adopted by a reluctant government in order to buy political support for, and
to add legitimacy to, a controversial and unpopular fund.
In Judicial Review: A Way of Controlling Government?, author David Feldman’s article points
to citizens, individuals, and groups who were not satisfied with the limited process available
through government agencies. Additionally, judges are scrutinized by political members for their
role as arbitrator for the public.
Earlier it was mentioned that even though the court deferred to the government’s decision in the
case of GCHQ, the law still did not provide a limited decision-making precedence for future
court intervention. However, this case did exhibit Parliament’s supremacy that it is traditionally
known for in government affairs. This was a turning point for British society. Citizens are now
aware that government will exercise its power to save the United Kingdom’s supreme political
image.
Ratepayers, people aggrieved by housing decisions, immigrants, environmental groups and
others began to use the courts and judicial review as an intercessor in disputes with government
agencies when no other options for appeal were available. Judicial review also began to be
regularly employed in the battle between central and local government over rates and spending
(Sunkin 1987, p. 21).
Among England’s government administrators and policy-makers, judges have developed a
negative reputation. Through judicial review, they felt judges were interfering in the political
realm. It was their assertion that judges’ influence should remain within the compounds of
judicial adjudication. Furthermore, this image was heightened when administrators and policymakers claim that judges are unsympathetic to judicial review procedures. Their greatest fear
became that judges (and the judicial system in general) were, through judicial review,
intervening too much into government affairs and were ultimately threatening Parliament’s
authority.
Judges became aware of the negative effects of judicial intervention involving issues in the
political arena. Even so, because of judicial review, they were frequently drawn into issues that
sparked political debate. Some of those circumstances involve central and local government. For
example, a local county council challenged the way in which the secretary of state had worked
out his guidance on a grant-related expenditure under Local Government, Planning and Land Act
1980, section 59, for the financial year 1985-86 (Feldman 1988, p. 22).
An Administrator of the House of Commons commented that the courts would be unwise to
challenge a statutory instrument after an approval had been made by the House of Commons.
The Administrator implied that courts should take caution not to overextend their court review
powers. Instead of court intervention, only the electorate of the House of Commons can propose
a political constitution change to the legislative supremacy of Parliament (Feldman 1988, p. 22).
By the 1980s, judges began to display sensitivity to the proper limits on their judicial review
powers. They did not constantly seek to extend their control over the administration (Feldman
1988, p. 27). The courts did not engage in implied threats to Parliament’s authority on judicial
matters. Under Parliament’s constitutional system there lies explicit separation of powers. Within
this uncodified system, it is understood that civil servants of the courts are to proceed with
judicial matters directed from the motions of Parliament. Despite the fact that the role of the
judges is to uphold the Rule of Law and Parliamentary supremacy, the separation is being
challenged frequently as witnessed in various cases that are presented to the courts.
When receiving statutory duties the courts do control the administration in the sense that, within
a small compass, they direct its activities (Feldman 1988, p.29). This directing of activities is
merely a formality of following procedures through the course of properly handling statutory
matters.
The idea that judicial review is used to ‘control’ the administration or that it should (or should
not) be, or that judges want (or do not want) it to be, is more complex than it is sometimes made
to appear. The remedies available on judicial review are flexible enough to allow that to be done
(Feldman 1988, p. 33).
The judges regard themselves as maintaining the Rule of Law and the legislative supremacy of
Parliament in the context of a separation of powers. The British model is to initiate the
formulation of objectives and methods for approval by Parliament. The Rule of Law requires
officials of the administration to show legal authority, usually derived ultimately from Acts of
Parliament, which affect the general public. The role of the judges is to uphold the Rule of Law
and Parliamentary supremacy by ensuring that officials do not exceed or abuse the powers given
by Parliament (Feldman 1988, page 28).
Nevertheless, the open texture of legislation and the absence of a legislative code of
administrative practice make it inevitable that judges will have to create or choose standards to
guide them in enforcing the Rule of Law. For example, it would be perfectly proper to approach
a decision pursuant to a statutory duty differently from one that involves the exercise of a
statutory discretion (Feldman 1988, p. 28).
If the ultimate justifications for judicial activity in administrative law are the supremacy of
Parliament and the Rule of Law, it makes sense to review decisions more readily if they are
shown to breach a duty than if they are a bona fide exercise of a power (Feldman 1988, p. 29).
Judges enforce procedural preconditions in statutes. Judges ensure that powers are exercised by
the correct body and that no improper delegation occurs. Judges check that bodies treat
discretion given by statute as genuine discretion and are not unduly fettered by policies (Feldman
1988, p. 29).
In the United Kingdom, Parliament opposes any intervention from the courts. There are judicial
techniques that are introduced within administration that minimizes decision-making of the
courts. However, in several landmark decisions, judicialization of politics is occurring which has
lead the way to judicial review. Citizens, individuals, and groups are using the courts as an
arbitrator in disputes with government agencies. The decision of judges in some court cases is
challenging Parliament’s legislature supremacy because of judicial review.
Reference
Feldman, David 1988. “Judicial Review: A Way of Controlling Government?.”
Public Administration 66: 21-34.
Tate, C Neal, and Torbjörn Vallinder, eds. 1995.
The Global Expansion of Judicial Power.
New York and London: New York University Press.