Natural justice Analysis

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 GCHQ6 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 Gilmore7 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. " 8 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 Commission9 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.