Judicial Review of Administrative Action Essay

A codified constitution 'provides a clear, accessible and coherent account of the fundamental rules and principles according to which the state and society are constituted and governed. '1 For a codified constitution to transform the British system of government, it would have 'to change [its] shape, appearance, or condition… '2 E. Wing has suggested that a constitution (given its wider meaning) refers to the whole system of government of a country.

It therefore appears that the British system of government is in fact its constitution, and as 'as every schoolchild is supposed to know, the United Kingdom (UK) does not have a written constitution'. 4 Consequently, the question reads, the enactment of a codified constitution would transform the (uncodified) British constitution. Although there are no 'obviously agreed boundaries to it',5 Oliver suggests that the UK constitution is 'based on a combination of traditions, conventions, Acts of Parliament, Acts of devolved bodies, as well as the regulations and decisions of the courts. '

What needs to be appreciated from the outset is that the question poses an unqualified assumption. In reality, the extent to which codification would transform the constitution is entirely reliant on factors that would have to be decided before the constitution were enacted. These factors include what a written constitution should contain and how detailed it should be. Which, if any aspects of the constitution ought to be justiciable, and whether or not and how far the constitution should be entrenched. 7 When deciding on what the constitution should contain, Brazier noted that four options emerge.

One was a simple programme of consolidation, which would bring little change as statutes are simply being brought together. Another option was partial codification, which, again, would produce limited change because the difficult aspects of our constitution could be avoided, such as the issue of constitutional conventions. 9 The final option, that of complete codification would bring about the most change. However, the extent of the transformation is reliant on other issues, such as justiciability and entrenchment.

Another influential factor is that of reform, for if the enactment was simply a consolidation of our current arrangements, the transformation would be somewhat limited when compared to a constitution that aimed to reform the system. 10 Although it is beyond the scope of this essay to debate what the constitution should fundamentally be, several authors have completed this task. 11 It would make sense to adopt one of these models, as issues such as justiciability, entrenchment and content will have been decided.

However, it would be restrictive to do so because they all have their merits and disadvantages. Furthermore, it is beyond the scope of this essay to engage in the discussion needed to justify siding with a particular constitution. Therefore, no attempt will be made to do so. Instead, the two aspects of the British constitution that would create the most discussion will be analysed, to see if enacting a codified constitution would transform them. Parliamentary sovereignty (PS) will be discussed as for centuries it has been espoused as the founding principle of the constitution.

12 Constitutional conventions are to be discussed as they 'play a central part in the theory of British Government. '13 They are also the only source of the constitution that do not exist as official statements. 14 Whilst analysing these fundamental aspects, it shall be borne in mind that we are working with an unqualified assumption, and a constitution that is silent on matters which are highly influential in regard to how far its enactment would result in a transformation.

Dicey said that Parliamentary sovereignty (PS) means that Parliament has the right to make or unmake any law, and that no person or body can override or set aside the legislation of Parliament. '15 This lack of legislative restraint has both a positive and a negative effect. It means that whilst Parliament can legislate on any subject, it cannot bind successive Parliaments. In the absence of a codified constitution, PS assumes special importance,16 and indeed the doctrine distinguishes the UK from most codified constitutions.

For example, in the United States (US), the written constitution imposes limits on the legislature and allows the courts to decide whether acts are in accordance with the constitution. 17 In the case of Marbury v Madison,18 the US Supreme Court held that they had the authority to decide whether laws passed were in conformity with the constitution, enabling the judiciary to hold legislation invalid. This idea of judicial review is wholly inconsistent with the traditional doctrine of PS, as under the doctrine no one can challenge Parliament's laws.

Lord Diplock, in the GCHQ case, set out three separate grounds of which can base judicial review of the Prerogative Powers; Illegality, Irrationality (incorporating the Wednesbury principles) and Procedural Impropriety, he then goes on to say "I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law".

This leads us to the Royal Prerogative of Mercy, a well established case example of where the courts have been able to widen the scope of Judicial Review so that can take into account Prerogative Powers, is the case of R v Secretary of State for the Home Department, Ex parte Bentley26. This was regarding Derek Bentley who was a 19 year old with a mental age of 11, and Christopher Craig who was.

They were charged with the murder of a Police officer. The fatal shot came from Christopher Craig who was reprieved. However, there were concerns of Derek Bentley's conviction. Derek's family campaigned to the Home Secretary for a free pardon, in 1992 the Home Secretary who said that it was not open for him to exercise the Royal Prerogative of Mercy to give such a pardon. The matter went to Judicial Review after an application form Derek's sister.

The Home Secretary made an error of Law, misinterpreting the power. It was held; "that decisions taken under the Royal Prerogative were susceptible to judicial review if their nature and subject matter were amenable to the judicial process and in so far as the challenge did not require the court to review questions of policy"27 due to the nature of the Prerogative Power, it was susceptible to Judicial review.

The court went on to say that "the Royal Prerogative of mercy was a broad and flexible constitutional safeguard against mistakes encompassing conditional as well as free pardons; that where it was wished to recognise that a death sentence which had been carried out should have been commuted to life imprisonment there was no objection in principle to the grant of a posthumous conditional pardon"28 Historically, Prerogative Powers where as William Blackstone described them as what "what "the King enjoys alone"29 and were unique to the Crown.

However, since the Glorious Revolution of 1688-1689, where the Bill of Rights 1689 was established; reducing in affect the Prerogative Powers. Statutes were created which did what the Prerogative did however where Acts of Parliament and not powers of the Crown and took president over them. The residual Prerogative Powers, at first were not permissible under Judicial Review, however over time this view was seen as the "the clanking of mediaeval chains of the ghosts of the past"30. It was not until the GCHQ case, where Prerogative Powers became reviewable.

Bibliography

Anderson v Secretary of State for the Home Department [2003] 1 A. C. 837 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General v de Keyser's Royal Hotel [1920] AC 508 A V Dicey, Introduction to the Study of the Law of the Constitution (10th edition 1959) Council of Civil Service Unions and Others Appellants v Minister for the Civil Service [1985] A. C. 374 De Smith. Judicial Review of Administrative Action (5th Edition 1995)