'Crown courts, county courts, justices of the peace, coroners and all statutory tribunals are liable to have their decisions quashed or their proceedings prohibited, except where parliament provides otherwise (by Ouster clause) – and sometimes even when it does. ' H. W. R Wade & C. F. Forsythe – Administrative Law 3rd edition. Critically consider and comment upon this statement with full reference to appropriate legal authorities. Parliament is a legislative body that is the supreme law making power of this country.
As Dicey commented, the sovereignty or supremacy of parliament is "the dominant characteristic of our political institutions. " 1 This legislative supremacy that Parliament holds gives them unlimited rights to create or repeal laws under the British constitution and means no other body can question a decision made by these supreme lawmakers. Dicey illustrated this point when he said, "Parliament has the right to make or unmake any law, and no person is recognised under the law as having the right to override or set aside the legislation of parliament.
" In the United Kingdom parliament is truly supreme and Sir Ivor Jennings statement that, "If parliament enacted that all men should be women, they would be women so far as the law is concerned," indicates the extent of parliaments sovereignty. Parliament's supremacy is upheld by the fact that no parliament is bound by the decisions of its predecessors and means new and improved law can be implemented. An authority for this is the case of Ellen Street Estates Ltd v Minister of Health (1934). 2 The British government is made up of three organs of state.
These are the Executive, the Legislature (House of Commons, House of Lords and Monarch i. e. parliament), and the Judiciary. It has been shown over the years that the judiciary is totally unwilling to question the legitimacy of statutes unless there is some question as to them not being passed using the correct procedure. As long as an Act has passed through both Houses and received the Royal Assent, judges will not argue whether or not a statute should or should not exist but will merely try to apply the statute. One of many examples of this is the case of Edinburgh & Dalkeith Railway Co. v Wauchope (1842).
In this case a man was appealing to the court against a private Act obtained by the railway company as it adversely affected him. The court however would have nothing to do with it and Lord Campbell pronounced, "… all that a court of justice can do is to look at the Parliamentary roll, if from that it should appear that a bill has passed both houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, what was done to it previously being introduced, or what passed in Parliament during the various stages of its progress through both houses of Parliament.
" 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 GCHQ3 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),4 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 principle5 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.