Administrative Law Judicial review

In general, judicial review is the power of the courts or of judicial bodies under the judiciary department to resolve issues that bear on the interpretation or construction of laws, including the constitution, the fundamental law of any sovereignty. In United Kingdom jurisprudence, judicial review is a process whereby courts or judicial bodies supervise the exercise of a public power. Those courts or judicial bodies shall act accordingly when an individual applies for that relief or remedy. Thus, if one perceives that any government authority exercises its powers illegally, he (the aggrieved party) may file or apply to the Administrative Court for judicial review. This means that the petitioner or applicant will be asking the Administrative Court to quash or set aside the allegedly illegal act or order or decision of the challenged government authority.
In one case law, the grounds for judicial review were summarized into illegality, irrationality or unreasonableness, and procedural impropriety.1 Illegality and irrationality are founded on substantive considerations as both relate to the principles and theories applied in asking for the review of the act, order or decision of the respondent government authority. Procedural impropriety, on the other hand, points to the serious flaws of the procedures followed by the government authority in doing the act or in issuing the order or in rendering the decision.
Ordinarily, judicial review does not entangle so much in difficulty for its application and interpretation in cases on the subject of human rights. Thus, if an administrative office under the education ministry issues a ruling, for instance, that a certain public high school will accept only straight male boys for education grants, that ruling will be subject to judicial review if the
1 Council of Civil Service Unions and others v Minister for the Civil Service 1985 House of Lords. [inernet] Accessed July 20, 2009.

prospective gay students apply for the same on the possible contention of discrimination which will have repercussion on their human rights even under common law.
With the passing of the Human Rights Act of 1998 and the interpretation of basic rights and freedoms coverage in conjunction with the European Convention on Human Rights, there may be debates on the issues. Before the said law, no written law in the United Kingdom enumerated basic human rights and fundamental freedoms. These key human concerns were embodied in the general common law. Then came the Convention where provisions on basic human rights and fundamental freedoms are clearly stipulated. In view of all these, arguments on the issue of reconciling the Human Rights Act and the Convention have abounded. For instance, in the case of Ghaidan v. Godin-Mendoza2, the Human Rights Act was put on the test. Ghaidan v Godin-Mendoza was about gays who lived together as couples. Under the applicable law on rental succession, gays who treat each other as conjugal partners are not considered as husband and wife. Upon judicial review, Article 14 of the Convention was invoked and the court found that the claim against discrimination on the basis of sex or other gender orientation for that matter was tenable. The calisthenics all about the variances will lead to resolve the perception that the convention has become inferior to the Human Rights Act. It is at this point that the importance of judicial review in administrative law becomes apparent.
The first part of Section 3 of the Human Rights Act says that primary and subordinate legislations must be construed such that local laws are compatible with the rights listed in the Convention. The statutory provision has its rationale. As a signatory to the treaty, the UK must abide by the rules of the Convention. Hence, UK statutes are interpreted in a way that there is agreement with the Convention. The final portion of Section 3 is the meat of the problem. It
2 Judgments Gaidan v. Godin-Mendoza. www.parliament .uk http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm

states that it does not affect the validity and continuing operation of the incompatible primary law. Does this affect the strength of the Convention? The answer is in the negative. Current primary and subordinate UK laws were deliberated for local application and were surely studied extensively before being approved. Confusion will arise if these statutes are made quickly obsolete. Furthermore, primary and subordinate laws are for specific intentions and must not be discarded un-judiciously outright as to do the same will rock the boat, son to speak.
It is along these lines that the importance of judicial review in administrative law comes into play. If there is incompatibility, this may be raised to the courts for judicial review. If the reviewing court is convinced that the local law is not compatible with the Convention, such court will make a declaration of incompatibility. To rectify that, a legislation to correct the incompatibility is necessary. Functions of a public nature under a provision of the Human Rights Act of 1998
As outlined in its prefatory, the Human Rights Act of 1998 is a law passed by the United Kingdom (UK) legislature which has the function, among others, of giving further effect to the rights and freedoms set forth in the European Convention of Human Rights.3 Human rights and fundamental freedoms are founded on religious, cultural and philosophical dynamics which are the very core in the individual person. In sum, this statute is a local legislation that directly relates to the European Convention on Human Rights, a broader law which covers the signatory countries of Europe. Essentially, the Human Rights Act of 1998 incorporated the provisions of the Convention in the legal system of the United Kingdom. The efforts were initiated in order to render the Convention more meaningful. The process, however, may have drawbacks in interpretation or construction. For example, Article 8 of the Convention stipulates that every
3 Human Rights Act of 1998. [internet]. Accessed July 20, 2009.

person must have the right to be respected of his private and family life, of his home and of his correspondence. It further mandates that no public authority may interfere with those rights unless otherwise provided for by law or for reasons that hinge on national security, public safety or the well-being of the concerned country, prevention of disorder or crime, protection of health or morals, or on the protection of the rights and freedoms of others.4
Upon the other hand, there is a provision in the Human Rights Act which dictates that it will be unlawful for a public authority to do acts which are not compatible with the rights conferred upon individuals by the Convention. In an attempt to clarify, the proviso further states that public authority includes any person whose functions are of a public nature.
For instance, police officer A notices that B and C are talking about political parties and of socialist and communist ideologies. Police officer A wants to search the personal papers and documents of B and C who live in the same house. Police officer A goes to the court for the purpose of obtaining a search warrant. In this case, police officer A is performing a task or a function which is of a public nature. As documented in 6 (3) (b) of the Human Rights Act of 1998, the delineation of functions of a public nature is very important in administrative law because it clearly states the public authority who is not allowed to do things which are in violation of individual rights guaranteed by the Convention.
In the well-known case of the popular actress and model Naomi Campbell, media people invaded into her personal and private affairs including the young star's alleged visits to a medical clinic engaged in the management of concerns related to drug use or abuse.5 As a matter of
4 Article 8. Right to respect for private and family life. Convention for the Protection of Human Rights and
Fundamental Freedoms as amended by Protocol No. 11. [internet] Accessed July 20, 2009.

5 Judgments - Campbell v. MGN.United Kingdom House of Lords Decisions. BAILII. Accessed June 24, 2009.
http://www.bailii.org/uk/cases/UKHL/2004/22.html

course and as a matter of law, those media intruders are not considered as doing functions or duties of a public nature.

Works Cited Article
Right to respect for private and family life. Convention for the Protection of Human
Rights and Fundamental Freedoms as amended by Protocol No. 11. [internet] Accessed
July 20, 2009. Council of Civil Service Unions and others v Minister for the Civil Service 1985 House of
Lords. [inernet] Accessed July 20, 2009.
Judgments - Campbell v. MGN.United Kingdom House of Lords Decisions. BAILII. Accessed
June 24, 2009. Judgments Gaidan v. Godin-Mendoza. www. parliament .uk Accessed June 24, 2009
Human Rights Act of 1998. [internet]. Accessed July 20, 2009.


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