Essay: Separation of powers / rule of law / judicial review

Bills which passed by the parliament in the United Kingdom distribute the powers to the departments and other authorities, but whenever they exceed the use of powers there will be an abuse of powers.
Separation of powers assign the idea that the relevant institutions of the government should operate independently and no officer should possess the powers of these institutions. The three principal institutions are executive, legislature and judiciary.
Parliamentary supremacy is a guideline of the UK constitution. It makes the Parliament the most incomparable lawful power in the UK, which can introduce or terminate any law. For the most part, the courts can’t overrule its enactment and no Parliament can pass laws which future Parliaments can’t change.
Although individuals frequently state that UK owns an ‘unwritten constitution’, it is not entirely true. Even though it does not exist as documentary like in the USA or Germany, the main parts of it have been written down. Nevertheless a lot of laws in Parliament are considered as statutes. Throughout the years, the Parliament has passed laws as point of confinement for the utilization of parliamentary supremacy. These laws reflect political improvements both inside and outside the UK. And they include, the devolution of energy to bodies like the Scottish Parliament and Welsh Assembly. The Human Rights Act 1998. The UK’s entrance to the European Union in 1973. The choice to set up a UK Supreme Court in 2009, which close the House of Lords and its capacity in the UK as last court of claim.
The Rule of law is one of a lengthy common law fundamental principles in the UK which is a combination of components such as legal certainty, equality, fairness, retrospective and due process.
Rule of law is a flexible and powerful constraint that influences the evolution of the United Kingdom (Professor Jewell). It was further promoted in the nineteenth century by British legal adviser A. V. Dicey. According to Dicey’s (introduction to the study of law and constitution 1885) the constitution of a country is governed by three main principles.
The first principle states that, a man can be punished only for breaking law but nothing else. Thus his first point reveals the absence of authoritative power which can be defined as unidentifiable legal or origins or constraints. For an example Entick v Carrington 1765. However a penalty can only be imposed on an individual for a breach of an established legal rule which has been proven in the ordinary court of law.
The second principle of Dicey’s definition explains the equality before the law, or the equal subject of all classes to ordinary law of land administered by the ordinary courts. Furthermore it states that no one is above the law; officials and citizens need to obey the same law.
The third principle of Dicey’s highlights that the law of constitution, or the rules which in foreign countries form part of constitutional code, are not the source but consequences of the right of individuals, as defined and enforced by the courts. Thus the constitution is the result of the ordinary law of land. Furthermore this principle implies that the rights of an individual are not only ensured by the guarantees set down in a formal document but by the ordinary remedies available against those who unlawfully interfere with someone’s liberty.
On the other hand there are criticisms for Dicey’s three principles (which he have been expressed over the rule of law.) For an example Professor Jennings took Dicey on a number of points, with an idea that the rule of law was inconsistent with or contradictory to the existence of discretionary powers. In ‘The law and the constitution’, Professor Jennings encloses a number of discretionary powers which both existed and were capable of being exercised at the time that Dicey first published his thought.
One of the proponents Joseph Raz 1977 proposed a procedurally oriented version of the doctrine in eight postulate. He shared common grounds with the constitutional theorists A.V Dicey, Hayek and Thompson.
Ministerial responsibility is that ministers should have to be answerable to parliament for the way in which powers assigned through statute are being used. This can be applied to all forms of government organizations.
Ministerial accountability is, parliament must have the means to hold an account on those who have been conferred the powers of the state, should they be ministers or non-elected officials. If these two requirements can be met as one, then it can be satisfied that the power of state is being exercised constitutionally.
The individual ministerial responsibility is a wider part of ministerial responsibility. According to this ministers are individually responsible for the work of their departments and answerable to parliament for all their departmental activities. Therefore they are expected to accept responsibility for any failure in administration, any injustice to an individual or any aspect of policy which may be criticized in parliament, whether personally or not.
When considering departmental responsibilities, departments and their agencies are responsible for putting the government policy into practice. There are 25 ministerial departments 21 non ministerial departments and more than 300 agencies and other public bodies in UK.
When looking at government departments, departments like ministry of defence cover the whole UK. Some like department for work and pensions doesn’t cover some areas in UK because some aspects of government are devolved to Scotland, Wales and Northern island. Non ministerial departments are not headed by ministers because they are headed by senior civil servants.
When considering executive agencies, they are a part of the government departments and usually they provide government services rather than deciding policy, which is done by the department that oversee the agency. As an example driver and vehicle licensing agency which is overseen by the department for transport.
When looking at other public bodies these have varying degrees of independence, but directly accountable to ministers. There are 4 types of non-departmental public bodies, namely, executive non departmental public bodies which do work for the government in specific areas, advisory non departmental public bodies which provide independence, expert advice to ministers, tribunal no departmental public bodies which are part of justice system and have jurisdiction over a specific area of law and independent monitoring boards which are responsible for the running of prisons and treatment of prisoners.
Police powers of United Kingdom are widely represented by the statutes such as Police Act 1996 and Police and Criminal Evidence Act 1984. PACE 1984 is a parliament act which is enacted to equalize the powers of the police in United Kingdom and the right and the freedom of public. Police act 1996 is enacted to build the relationship between the home secretary and the territorial police forces. Both of these acts are enacted to succeed the desires of equalizing the powers of police rights over the freedom of public and to build the relationship between government agencies.
Laws which are related to the behavior of the police are set down in accordance with the codes of practice. Apart from that there are also some statutes which the police is not permitted to involve in to.
Police uses their powers when there are any acceptable grounds to stop and search. Section 1 of Police and Criminal Evidence act (1984) states that stop and search may occur if there are stolen goods or drugs or an offensive weapon or knives or any article made or adapted to use in certain offences such as burglary or theft, or if there are any items which could damage or destroy property.
According to this section of PACE (1984), stop and search power can be exercised when there are reasonable grounds as above, but if a serious offence has taken place, the police can stop and search an individual without the existence of any acceptable grounds.
Under many different situations police has powers to stop and search people. Under S23(2) of misuse drugs act 1971, a police officer may search any person whom he has stopped on acceptable grounds of suspecting to be in possession of a controlled drug in contravention of the act, and the exact power is enclosed to a police officer to search a vessel or a vehicle for a controlled drug. Likewise police can search a football coach to check if he has consumed alcohol. Section 44 and 45 of the terrorism act 2000, granted police powers to stop and search which is not conditional on the use for acceptable suspicion. For an example police can stop and search a person or his vehicle if police has the reasonable grounds to suspect that he is a terrorist.
The next situation which the police can use their police power is possessing powers when arresting someone in the public. Basically police can arrest someone if they have a warrant, but on the other hand there are some situations which the police can arrest you without a relevant warrant too. They are, when you are in the act of committing certain offences, when the police has reasonable grounds for suspecting that you are committing certain offences, when they have reasonable grounds for suspecting that you have committed certain offences, when you are about to commit certain offences, and when they have reasonable grounds for suspecting that you are about to commit some certain offences. Police can use their power to arrest a person but there should be reasonable suspicion. Spencer v Holt (1977), Viscount Dilhorne define arrest as a common word of English which means that a person is not arrested depending only on legal circumstances but if he has not been given the freedom to go anywhere he wanted.
Under Police and Criminal Evidence Act (1984) a policeman has the power of arresting a person for an arrestable offence. S24 of PACE states that the police can arrest a person where him/ her is in the act of committing an arrestable offence, if there were reasonable grounds to suspect him.
According to section 24 of PACE police can arrest someone without having a warrant, but when arresting a person, the police should have to reasonably suspect that offence has been, is being or will be committed. Accordingly Lord Devlin had described reasonable suspicion as a statement likely to be true but not proven formally as it lacks evidence in Hussein v Chong Fook Kam (1970), but the term reasonable suspicion has not been defined in Police and Criminal Evidence Act (1984).
Judicial review is all about the control over administrative decision making. It is a rapid effective and a very powerful way of persuading a public body to reconsider a decision or force them to take an action which they should be taking. This is available when the public bodies act act ultra vires and when they act in contravention of the rules of natural justice.
In council for civil service union’s v minister for the civil service 1983 (GCHQ) Lord Diplock established three main grounds for judicial review. Namely; Illegality, Irrationality and procedural impropriety.
Illegality is how decision makers should understand the law which regulates them. This involves the jurisdictional control of public bodies and the control of discretion by public bodies.
Decision or action might be illegal on the ground that the public body has acted beyond its powers. This appears when the legislation relating to a public body does not attach the relevant power or has restricted the limits on when the power can be used. When the public bodies act illegality in the way like this it can be represented as performing ultra vires, which means beyond the limits of its statutory or common law powers as in AG v Wits united dairies 1921.
When a public body fails to fulfill a statutory duty it becomes ultra vires. In R v Camden London BC ex parte Gilham 1988 which states that under statutory duty to provide accommodation to appropriate homeless people.
When the decision or action has been taken in relation to the wrong subject matter it can be regarded as an error of fact as in White and Collins v Minister of health 1939.
No evidence rule will apply when the judgement is based on wholly inadequate or erroneous basis of fact, a judgement will be held as ultra vires on the basis of no evidence if; judgement was based on no evidence, the evidence which available was very minimal that no reasonable decision which make could have based a decision upon it and it was based on a wholly mistaken understanding of facts.
When the public bodies act under a mistake of law or includes a law which is non applicable to a situation which can be regarded as an error of law.
The other component which illegality concerned as a ground of judicial review is control of exercise of discretion by the public bodies.
When a statute gives powers to a public body, if without any authority that public body delegate the investigation of that power to another public body then that public body doesn’t have the power to make decisions. This is called as an unlawful delegation as in Barnard v National Dock Labour Board 1953.
When a public body grant to the exercise of the power by another public body without any constitutional arrangement to delegate power is called as an abdiction of discretion as in Ellis v Dubowski 1921.
When the authority which need to exercise discretion grants its choice to be dictate to it by another body which is not authorized to make such decision and this is consider as acting under dictation as in Roncarreli v Duplessis 1959.
When a public body adopts a particular policy and then applies that policy so rigidly that the merits of individual cases are not considered as in british oxygen co ltd v minister of technology 1971.
When a contract or an agreement undertakes not to exercise a discretionary power or limit the range of decisions otherwise available to it, as in stringer v minister of housing and local government 1970.
When public authorities have made decisions which based on irrelevant considerations then it called as irrelevancy as in Roberts v Hopward 1925.
And
Statutory powers should use by public bodies for the purposes which they were given. If a power is used for an ulterior purpose in a way clearly inconsistent with the objectives of the statute, then such power can be used as illegality. As in R v Inner London education authority ex parte Westminster city council.
In GCHQ Lord Diplock stated that basically wendsbury unreasonableness and irrationality effectively gives the same meaning. Irrationality applied when a judgement is violent in its defiance of accepted moral standard which that no sensible person who had applied his mind to the inquiry to be decided would have arrived at it.
In associated provincial picture houses ltd v Wednesbury Corporation 1948, lord greene stated that decision was so unreasonable that no reasonable authority could ever have come to it.
The above statement was described later as fautologous in R v Chief constable of Sussex, ex parte international traders ferry ltd 1999 by lord cooke.
Lord Scarman refer an action is being unreasonable as to be verging on an absurdity in Nottinghamshire county council v secretary of state for the environment 1986.
To be succeed under the ground of irrationality applicant should overcome a huge threshold of proof.
In R v Secretary of state for the home department ex p brind 1991 lord ackner stated that the test which has been introduced for irrationality has been crticised in many times. According to his vision it was necessary in order to underline the fact that judicial review is supervisory rather than an appellate jurisdiction.
In GCHQ lord diplock said that there might be some additional grounds for main three grounds of judicial review. And one of them is proportionality.
Proportionality is a principle that is identified in EU law. This principle is reflected in the jurisprudence of the ECHR.
The scope of proportionality principle, in a background of human rights arose in an appeal which concerns an alleged violation of a prisoners rights relating to his legal correspondence as in R v Secretary state for the home department ex parte Daly 2001.
The third ground of judicial review is procedural impropriety. This can be encompass into two kind of situations they are; Failure to observe procedural rules, which laid down in the statute. And. A failure to observe the basic common law rules of natural justice.
Failure to observe procedural rules which laid down in the statute occurs when a public body act in dependence upon statutory powers has failed to comply with the procedures which laid down in the relevant act, it can be said to have acted ultra vires. These procedures might take a lot of different forms, usually these forms entails notice, consultation and opportunities to make representations.
There are two distinctions between procedural requirements. They are mandatory and directory. When deciding whether one particular procedural requirement is mandatory or directory courts will look at the nature of the subject matter and the consequences of the violation and language which used in the legislation as in cases like Bradbury v Enfield Borough council 1967, Howard v Boddington 1877, R v Secretary of state for education ex parte national union of teachers 2000, states more about failure to observe procedural rules which laid down in statutes.
The common law rules of natural justice represent minimum procedural standards of UK’s common law for the legitimate exercise of decision making powers of government.
The basic purpose of natural justice is to ensure that an individual has been given a proper opportunity to present his side of the case prior to a decision being reached, and that decision itself reached in an objective manner by an independent and impartial decision maker. There are two principal rules which arose from natural justice and they are right to fair hearing and the rule against bias.
When considering of remedies for judicial review,
There are three main kind of remedies in public law and they are internal review, appeal and judicial review.
When a claimant seeks for a remedy under judicial review a claimant should have to look one of the below remedies and they are; injunction, quashing orders, declaration, mandatory orders, prohibitory orders, habeas corpus and damages.
To conclude there should be judicial and other mechanisms for ensuring that the Executive acts within those powers, and does not exceed or abuse them and that ‘such judicial mechanisms should be impartial and independent of government. In brief the judicial and the other mechanisms of the United Kingdom should be just and equitable because they should use the powers within the scope which they have given otherwise there will be an abuse of powers. So in UK there are some incidents which they use beyond the given scope of powers. But these mechanisms are impartial and independent to the government.