Table of Contents
Part A: Process of Judicial Review
Part B: Judicial Review Problem Question
Critically discuss whether in the 21st century Parliament remains sovereign.
The concept of parliamentary sovereignty or parliamentary supremacy has been a key fundamentally within the British system of administration, albeit dealing with numerous principles and regulations that are concurrent by nature. While several models of parliamentary exist within the United Kingdom, the subject has certainly faced a large amount of criticism in the past few years.
The concept of parliamentary sovereignty within the United Kingdom is multi faceted by essence and has developed significantly over the past few decades. However, owing to the presence of concurrent principles and legislative forces, the subjects are often in tension with one another. While parliamentary sovereignty seems to be simple concept, it certainly tends to comprise of a number of complications, especially when looking at the nature of the system of governance within the United Kingdom.
The key principles of parliamentary sovereignty globally relates to the legal system being unable to strike down enactments and regulations that are ratified by the Parliament as prevalent within the United States.1 The nature of parliamentary sovereignty has also been subject to extensive discussion in terms of the various classifications. While one relates to a self embracing nature where the key highlight relates to the sovereign’s ability to place limits on itself, the continuing sovereignty relates to the inability of the sovereign to engage in the same.
The role of the UK Constitution is instrumental when attempting to engage in any discussion involving the concept of parliamentary sovereignty. One of the major problems that is often highlighted relates to the lack of a single codification within the British Constitution. Due to the uncodifed and semi written status of the UK Constitution, individuals and media houses have often faced a plethora of difficulties when striving to appreciate or break down the concept of parliamentary sovereignty within the country. Moreover, the parliamentary system within the UK is also dynamic by nature. While the aspects of parliamentary sovereignty and constitutional authorities within the United Kingdom are distinctly separate entities, an evident connection manifests in due to the concurrent nature of the subject matters.
The discussions on parliamentary sovereignty are also fuelled predominantly by theoretical models that came into existence several decades ago. Naturally, it only adds to the ambiguity in this context. It is also important to note that the parliamentary will and actionability of sovereignty is essentially intangible.2 The clash between theorised conceptualisation and the practical nature of the Parliament’s undertaking are another major reason in addition to the lack of codifications within the British constitution that fuel the debate in a continuous manner.
Parliamentary sovereignty is also guided by a number of doctrines within the country, with the most prominent being the orthodox doctrine.3 The key fundamental within the doctrine relates to how the UK Parliament retains absolute sovereignty and comprises of an unlimited nature of authority in terms of legislation wherever is fit and appropriate. One of the key criticisms that have long been entailed within the concept of parliamentary sovereignty is the paradoxical nature of the doctrine, where the Parliament may enact a statute that limits its own powers, thus negating the concept of sovereignty. Dicey was one of the key theorists that propagated the principle of parliamentary sovereignty in the context of absolute sovereignty along with the concepts of express and implies repeals. The will of the parliament may certainly change, and one of the most prominent case laws in this regard relates to the judgement passed in “Estates Ltd v Minister of Health  1 KB 590” where the change of will was clearly established.4
One of the most talked about criticisms regarding parliamentary sovereignty in the 21st century is how the Human Rights Act 1998 empowers courts to analyse and interpret legislation in a manner that gives effect to the European Convention on Human Rights.5 Several legislative powers of the legal system including the right of British courts to send back criminals to their home countries can essentially be limited by the Parliament in the context of breaching their human rights. The fact that laws of the European Union enjoyed a de facto sense of supremacy within the United Kingdom was also a major area of criticism that had plagued the aspect of parliamentary sovereignty over the decades. There is a distinct clash between traditional theories and contemporary political realities, and it has only led to the criticisms gaining popularity in the modern era.
In conclusion, it could be stated that that parliamentary sovereignty, although institutionalised within the very system of governance as prevalent within the United Kingdom, is subject to a number of criticisms. The major area was the de facto supremacy of EU law in terms of legislative formation in the United Kingdom. An example would be the Human Rights Act and its development in line with the EU Convention on Human Rights.
1. What is the process of judicial review?
Judicial reviews are one of the most important parts of constitutional law within the United Kingdom, which essentially refers to the challenging the legality of decisions taken by the government. The courts of law take on a supervisory role in this regard, whereby the lawfulness and the validity of the decision are verified. The key provisions are contained in Part 54 of the Civil Procedure Code as enforced within the country.6
The process is relatively similar and along the lines of a statutory appeal. The most crucial required for a judicial review or JR in terms of initiation relate to the time limits. While a period of six weeks has been stipulated for planning cases, a period of 3 months has been stipulated for non planning cases. The first step in terms of the procedure involved is the writing of a formal letter to the defendant containing the claim and the context that being demanded. It is commonly referred to as the PAP letter or the Pre-action Protocol letter.7
The next step relates to the granting of the permission where the responses to the PAP letters ae unsatisfactory. JR Claims can be lodged in the Planning Courts of the Administrative Courts, which then undergo tests based on the legality and the relevance of the claim. This is followed by the substantive stage, which relates to the stage once the permission is granted. The substantive stage involves the presence of both the parties where the evidences presented are tested against each other. The substantive stage also culminates the final hearing stage, where the judgment of the JR is passed based on the adjudications undertaken.
The aspect of amenability within the judicial review process is also important in terms of how the decision being challenges must be taken by a public body. An important case law in this context relates to the judgment passed in “R v Panel for Takeovers and Mergers, ex parte Datafin  1 QB 815” where a privately established panel was amenable to the JR process since it was an integral part of the government.8 Ouster clauses are also prevalent within the United Kingdom alongside the rule of exclusivity. However, it is important to note that the courts of law within the UK have maintained that only words that do not entail any form of ambiguity or cloudiness can be excluded from the purview of a judicial review. The judgement passed in the matter of “O'Reilly v Mackman  2 AC 237” is relevant to the rule of exclusivity, whereby the claimant was allowed to proceed in the form of a judicial review since public law rights and their subsets were at stake.9
2. How does judicial review fit within the British constitution?
The judicial review system does not statutorily fir into the constitution of the United Kingdom, especially when considering the constitutional theory as expounded by Dicey in his commentaries. Administrative courts constituting the legal system within the country do not have the power to review the decisions and actions undertaken by public bodies as commonly prevalent in a number of European countries.10 Similarly, the doctrine of parliamentary sovereignty does not allow for the judicial review of any sort that involves the primary legislations enacted by the Parliament. Over the years, this has inherently limited the scope of the judicial review to secondary legislations, thus adding to the ambiguity involved.
The constitutional theory relevant to judicial review is dominated by the doctrine of ultra vires, where only decisions that are beyond the powers of the public bodies can be set aside by the courts. However, errors of law as well as decisions taken through Royal Prerogatives have often been included in terms of the subjects that are amenable to the JR process. Cumulatively, the process fits within the British constitution comprising of two major objectives, with one relating to the preventing the Executive from abusing its power and the second relating to the protection of individual rights. The judgment passed in the matter of “Council of Civil Service Unions v Minister for the Civil Service  AC 374” is highly relevant in this regard, where the four grounds of the JR process were established. These included illegality, lack of reasonableness, impropriety within the procedures and legitimacy of the expectation.11
The judicial review problem question presents the fictitious Legal Drug Shop Act 2019 along with 4 of its provisions. An individual named Kian presents for applications to the Arden City Council to open shops that sell legal highs.
The first shop, which was Shop A, was rejected as it was within one mile from the Arden City Junior School that educated children aged between six to ten years. Considering the scope of a judicial review, the application for the first shop would not stand any possible scope for the granting of permission since it distinctly violated the provisions contained in Section 1 of the Legal Drug Shop Act 2019 that states how Local Councils may deny application to open a shop that was within 2 miles of a school. It would also not fit the moral climate of the community as mentioned within Section 2 of the statute, thus further solidifying the grounds for denying the application.
The second shop, which was Shop B, was rejected because it was within two miles of the South-Coast University. Although the University had an adult exclusive population, it would not fit the moral climate of the community to open a legal high shop within two miles of a University. Naturally, the grounds for rejection for the second shop could entail legal validity in terms of the shop being opened.
The application for Shop C, which was the third shop, was rejected on the basis of the Arden City Council’s opinion that a legal high shop would undermine the value of the local property. Kian could argue that an inspection was warranted in this regard based on the ground of legitimate expectations, which is one of the most commonly relied on grounds to determine the amenability of decisions that may be subjected to the process of a judicial review. The judgement passed in the matter of “R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators
Association  2 QB 299” is relevant in this context.12 It established that courts may uphold requests for a judicial review if the expectation was substantive in terms of the following of a certain procedure by a public body, which in this case would be the Arden City Council.
The rejection for the application of the fourth shop, which was Shop D, would entail the most valid argument that Kian could put forward appealing against the rejection. In terms of the specifications, the application was rejected due to a failed inspection in accordance to Section 3 of the fictitious statute. However, the inspector was Mary, who was the only person who was granted permission to open shops selling legal highs. The decision by the Arden City Council would itself be in violation of Section 3, as it required the inspector to be independent. Considering how Mary could view Kian’s shop as competition, her credibility in terms of being an independent inspector would certainly come into question. Kian would be able to challenge the rejection on the basis of procedural impropriety and more specifically, the rule against bias.
Mary, the inspector assigned by the Arden City Council, comprised of a personal interest in the outcome of the application for the legal high shop by Kian as it would subsequently place Kian as one of her competitors. Had the licence ben granted, Mary would no longer be able to operate a monopoly in the market. The judgement passed in the matter of “REGINA v. BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE AND OTHERS, Ex parte PINOCHET UGARTE (No. 3) 1 A.C. 147” is relevant in this context, where the decision maker was disqualified despite no actual evidence of the bias being shown.13
'Human Rights Act 1998' (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/1998/42/section/3> accessed 22 May 2020
'PART 54 - JUDICIAL REVIEW AND STATUTORY REVIEW - Civil Procedure Rules' (Justice.gov.uk, 2020) <https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part54> accessed 22 May 2020
'Council Of Civil Service Unions And Others V Minister For The Civil Service  3 All ER 935;  AC 374.' (Oup-arc.com, 2020) <https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_43.htm> accessed 22 May 2020
'Ellen Street Estates V Minister Of Health  1 KB 590;  All ER Rep 385; 150 LT 468' (Oup-arc.com, 2020) <https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_10.htm> accessed 22 May 2020
'O'reilly V. Mackman' (Uniset.ca, 2020) <http://www.uniset.ca/other/css/19832AC237.html> accessed 22 May 2020
'R V Panel On Take-Overs And Mergers, Ex Parte Datafin Plc And Another (Norton Opax Plc And Another Intervening)  1 All ER 564' (Oup-arc.com, 2020) <https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_167.htm> accessed 22 May 2020
'R. V. Bow Street Metropolitan Stipendiary Magistrate, Ex P. Pinochetugarte (No. 3)' (Uniset.ca, 2020) <http://www.uniset.ca/other/cs5/2000AC147.html> accessed 22 May 2020
'Regina V Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators Association: CA 1972 - Swarb.Co.Uk' (swarb.co.uk, 2020) <https://swarb.co.uk/regina-v-liverpool-corporation-ex-parte-liverpool-taxi-fleet-operators-association-ca-1972/> accessed 22 May 2020
Banner C, 'The Judicial Review Pre-Action Protocol' (2008) 13 Judicial Review
Craig P, 'Proportionality And Judicial Review: A UK Historical Perspective'  SSRN Electronic Journal
Ewing K, 'Brexit And Parliamentary Sovereignty' (2017) 80 The Modern Law Review
'Does Parliamentary Sovereignty Still Reign Supreme? | Adam Wagner' (the Guardian, 2020) <https://www.theguardian.com/law/2011/jan/27/supreme-court-parliamentary-sovereignty> accessed 22 May 2020
'The Models Of Parliamentary Sovereignty – University Of Bristol Law School Blog' (Legalresearch.blogs.bris.ac.uk, 2020) <https://legalresearch.blogs.bris.ac.uk/2017/12/the-models-of-parliamentary-sovereignty/#_ftn1> accessed 22 May 2020
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