Critically consider and comment upon this statement with full reference to appropriate legal authorities.

From this it is quite clear that ordinary courts have no jurisdiction, nor are they willing, to enquire into issues concerning the internal affairs of Parliament irrespective of fairness or justice. Judges see their role, as being law upholders who must apply the rules and do not question the validity or logic of such rules, not publicly anyway. Their job is not to question, merely to apply, thus it has been established that Dicey's doctrine of parliamentary sovereignty is, in theory, true. However whether this is actually true in practice is not entirely certain. Although UK courts are bound to obey UK statutes regardless of how fair, just or practical they are, judges do have certain flexibility in interpreting them. It is their job not only to apply the statutes but also to give their interpretation as to what parliament hoped to achieve by such a statute. They may interpret a statute strictly if they feel this is necessary, or if it is worded in such a way that makes ambiguity impossible, they may allow a statute a wide interpretation. Judges may very possibly interpret a statute to mean one thing in one case and something completely opposite in another case but at all times must remember their duty to act lawfully. The creation of new legislation is almost a joint venture between Parliament and the courts. Parliament lay the foundations of the law and it is left to the judiciary to define the finer details of the law and apply it in a way they feel is just.

The independence of the judiciary is very important to our constitution. Baron Montesquieu (1689-1755, living in England from 1729-31) stated the importance of a separation of powers. If one of the organs of state had all the power it could be very dangerous and would lead to a subjective control of the country. The judiciary often like to re-emphasise their independence and subtly, but determinedly, point this out when they challenge the acts of ministers when they are held to be ultra vires.

How public authorities exercise their powers is always open to challenge in the Courts by way of judicial review and public authorities of all kinds must act within the power conferred to them. The Courts will not assess the merits of the decision made by a public authority, that is not the role of the Courts. The Courts can only assess the decision and rule upon its lawfulness. If the Court finds the decision to be unlawful or ultra vires it merely quashes it, it cannot replace an unlawful decision with a lawful one. Where a decision is quashed the case goes back to the public authority for reassessment. There are however limits to the authority of the Courts involvement in decisions made by public authorities. Lord Diplock, in the GCHQ case, restricted the Courts involvement in judicial review to the consideration of decisions that were ultra vires, irrational or had been subject to procedural impropriety. The Court went on to add that this list was not closed and may be added to in the future.

Public bodies must act lawfully or face a review of their acts. However illegality or the ultra vires rule is often a matter of statutory interpretation as shown in Attorney General v Fulham Corporation (1921), Here the Court held that the local authority were empowered under the Baths and Washhouses Acts to establish baths and wash houses but they were not entitled under the statute to carry on the business of a laundry. They could only provide facilities but were not empowered to wash peoples clothes for them.

Public Authorities must also act with reason. This has become known as the Wednesbury principle and the court has defined unreasonableness as,

"conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt." Irrationality was also described by the Court as "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." 

A public body may also abuse its power where it uses a legitimate power in a way unintended by parliament. An abuse of power may be exercised in good or bad faith. For example a public authority acts in bad faith where it acts dishonestly, maliciously or out of animosity. In the Municipal Council of Sidney, land was compulsorily purchased, not in order to expand public buildings, as it was entitled to do, but to benefit from increasing land values.

Natural justice demands that the person who makes the decision in a case is impartial, having no interest in it’s outcome, and that a person who is affected has the opportunity to state his case. These rules are known as Audi Alterem Partem (hear both sides) and Nemo Judex in Causa Sua (rule against bias) and if they are not met a review is implemented. It is therefore clear that a man may not judge his own case and in 1852 the House of Lords overturned a decision of the Lord Chancellor who judged in favour of a company he held shares in. Similarly, the House of Lords reheard the General Pinochet appeal on the basis that one of them, who heard the earlier appeal, had an interest in the case by virtue of his involvement in a civil rights organisation that were opposed to General Pinochet.

As a general proposition, acts by ministers of the crown under the Royal Prerogative are not reviewable by the Courts. The House of Lords said in the GCHQ case that:

"Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers, as well as others, are not, I think, susceptible to judicial review because their nature and subject matter is such as not to be amenable to the judicial process. The Courts are not the place wherein to determine whether a treaty should be concluded, or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another."

 This statement is not however the definitive position on the extent of the Courts power to judicially review decisions made under the Royal Prerogative. Three of the Law Lords in the GCHQ case preferred to leave the question unanswered. The House of Lords is also able to review its own previous decisions and the possibility arises that certain aspects of the Royal Prerogative could be successfully challenged in the Courts.

During the 50’s and 60’s parliament increasingly used statutes that appeared to oust the courts common law power to review. These came to be known as ouster clauses and were part of a swing towards green light theories in administrative law. Such statutes contradicted the Diceyan rule of law, but due to its supremacy there was technically no way that parliament could be prevented from excluding the power of review. An example of this is illustrated by the system of welfare payments established by the National Insurance (Industrial Injuries) Act 1948. The act allowed dissatisfied applicants to appeal to a specialised medical tribunal, and section 36(3) stated that the tribunal’s decision ‘shall be final’         which technically prevented the individual from gaining redress via seeking review of the tribunals decision in the courts. However Lord Denning refuted that judicial review could be taken away by such unambiguous words and in the case of R v Medical Appeal Tribunal, ex parte Gilmore he stated that judicial review:

“is never to be taken away by any statute except by the most clear and explicit words. The word ‘final’ is not enough. That only means ‘without appeal’. It does not mean without recourse to review.”

This shows that the judiciary are reluctant to accept parliament suspending judicial review and feel citizens should always be able to challenge the decisions of government bodies before the ‘ordinary’ courts. Also as Lord Denning emphasised, parliament should only be able to do so by using absolutely unambiguous statutory formulae.

        It would thus seem that this criterion was met in the ouster clause in s 4(4) of the Foreign Compensation Act of 1950 which established a commission to distribute limited funds among British nationals whose oversees property had been seized by foreign governments. It stated that the commissions ‘determinations…shall not be called into question in any court of law’. It would seem that this would encompass both appeal and review, however in the case of Anisminic Ltd v Foreign Compensation Commission the House of Lords decided to review the Commissions activities on the grounds that it had made an error of law in it’s decision making process. The reason this was possible without challenging parliamentary sovereignty was due to the fact that the decision that the Commission had arrived at was a ‘purported determination’ as opposed to a determination. So because the ouster clause made no reference to purported determinations the courts could implement a review of the decision. The Anisminic case truly presented a challenge to Parliament’s sovereignty, but the challenge was more at the legitimacy rather that the legality of Parliaments act, leaving it’s law making power in tact. If it truly wanted Parliament could completely overturn Anisminic but only at the risk of being seen to defy the rule of law. If Parliament did do this, and implemented a bill that contained a more extensive ouster clause, it is uncertain as to whether the judiciary would challenge it with further creative statutory interpretation.

        The judiciary is key to justice; it ensures fairness and prevents public bodies from acting outside the law. The judiciary also keeps parliament in check, holding very important powers in interpreting statutes, and is of vital importance in upholding parliamentary sovereignty. It would be completely wrong to think that the judicial system is merely a servant under the operation of Parliament. The judiciary, as has been shown, very much has a mind of its own. It seems that English courts whilst being allowed a certain amount of flexibility are still ultimately answerable to Parliament, however this seems to be more through choice than obligation. It could be argued that the Anisminic case showed the judiciary to be unconstitutionally intruding on Parliamentary sovereignty. However it may also show that by the increasing deployment of ouster clauses, Parliament were displaying an unhealthy disrespect of the judiciary’s power.    

 

BIBLIOGRAPHY

• Administrative Law Workbook – Ken Brown – Bournemouth University
• Constitutional & Administrative Law 3rd edition – Hilaire Barnett – Cavendish publishing
• Constitutional Law, A Critical Introduction 2nd edition – Ian Loveland – Butterworths
• Constitutional and Administrative Law 8th edition – Paul Jackson and Patricia Leopold – Sweet & Maxwell
• www.lawtel.com

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