Admin law and Human rights - Essay Example

? Administrative Law and Human Rights Judicial Review Judicial review entails looking at the public law with an intention of restructuring the legal principles. These principles acts as a check on the powers delegated to public bodies. In this sense, decision arrived at by neglecting the due process are challenged. Factors considers in this respect include irrational decisions, biasness, a breach of human rights or other stipulated laws; as a result of initiating judicial review since 1985 in the UK, unlawful decisions in the public realm are challenged in the court of law. Compainants can also file a case if they feel that further ctions need to be taken after completion of trial.1This occurs through filing official complaint by following the right procedure as stipulated by the complaints procedure. In addition, judicial review has established alternative mechanisms such mediation and other dispute resolution mechanisms. Further, as a result of judicial review, other laws exist such as social security and immigration law2. Judicial review provides citizens with a leeway to redress grievances where decisions or actions are executed in unlawful manner. Through this mechanism, complainants obtain compensation to cover damage or loss from actions by public bodies that is not public law. Currently, citizens have a right to apply for public law remedy. The existence of public funds assists in terms of facilitating a judicial review. To access public funding, the complainants need to meet the required criteria. Through a review; a judge can review whether a decision is executed lawfully by the right authority, and in this context, a public body. A review is possible where: there is biasness in terms the public body arriving at a decision considered unlawful or no other alternative remedy 1. The genesis of new remedy dates back to 1978, as applied in England and Wales, this was brought about by Order 53 that focuses on rules established by the Supreme Court; further, Order 53 allows for private remedies. This includes filing unlawful decisions in the courts, as a result of the Order; complainants have opportunity to challenge executive action3. Exclusive powers often impede on judicial review; therefore, judicial review since 1985 forms part of public life. Prior to the establishment of judicial review, executive actions were not questioned, this impeded on individuals rights4. Establishing judicial review contributes to an increase of cases filed in courts; in essence, there is more clout in terms of the judiciary intervening in unlawful decisions by the public bodies5. However, despite judicial review cutting on executive action, it is subject to abuse. Individual may capitalize on the procedure to delay rulings touching on public policies. Tighter controls should be established, this would help in terms of minimizing piling up of cases in courts and a fast execution of justice. As a specific measure, judicial review should focus on genuine complaints, this assists significantly in holding public bodies’ responsible6. Through the review process, the government is kept at bay regarding enforcement of various public policies7. Challenging decisions arrived by public bodies is important in terms of maintaining balance and check to curb on abuse of power. In a case of Sackett v. U.S. Environmental Protection Agency, for example, the Court unanimously agreed the couple were entitled to an early federal court review of an EPA compliance order declaring that they filled wetlands on their property illegally8.  This process is synonymous with statutory appeal; however, application for court proceedings has a stipulated period, this must not exceed utmost three months. Successful judicial reviews often lead to nullifying the previous decision; therefore, nullifying decisions means, the complainants obtains new ruling favourable to all parties. Regarding the issue of time limits, judicial review applications are endorsed by the court. The first step in the process involves writing a formal letter that clearly sets out plaintiff’s claim to the defendant. An alternative, where the plaintiff is unsatisfied involves lodging the complaint with the Administrative Court. The judgment regarding judicial review applications are often instant; moreover, appeals for judicial review are normally processed in the Appeal Court9. In present times, a decision by the executive that impacts on citizens revolves around misusing statutory powers10 . Judicial review forms an important component to the citizens; therefore, through the process, public bodies are checked against abuse of authority and enhancing a democratic society. The process allows for safeguarding legal accountability, in a system where judicial review is a recognized entity, various government institutions operate efficiently. For example, the police minimize acts of infringing on citizen’s rights, and the responsible authority taking care of the disadvantaged in the society11. In addition, the existence of judicial review plays a role in terms of fostering respect for individual rights. Legal accountability aids in the establishment of a society where, citizens’ life is improved. As a result, activists have opportunity to argue their cases against the government in courts. For example the case of a young girl suffering Down syndrome affected by the Housing Association decision12. Judicial review is also important in terms of promoting constructive development within the public sector. On another note, the government often feels threaten as a result of upholding judicial review. The government from time to time rescind on the commitment to support the judicial review process13. Since 1985, increase in misunderstand between the judiciary and the executive have existed. This results from the decisions arrived at the courts through judicial review applications by complainants. This was exacerbated by the implementation of a legislation safeguarding human rights in 199814. Concerning public law, the government is responsible on matters related to public authorities. Through the public law, the government maintains power necessary to execute her duties; however, such power could create conflict with judicial review. The inception of judicial review has permitted groups, individuals and businesses to challenge decisions regarded in legal terms as unlawful. The public bodies normally in conflict with the judicial review process include the immigration department, regulatory bodies, and the local authorities. There are grounds necessary for judicial review to take effect, and they include issues such as the determination of illegality. As determined in the proceedings of GCHQ case, grounds for illegality include ultra vires act, this entails the misuse of delegated powers. Illegality in this sense arises as a result of acting in a manner that contradicts an above legal authority; for example, laws like subordinate legislation. Another incidence related to ultra vires act involves exploiting statutory authority for collateral gain. Delegating powers in unlawful manner also creates conditions for illegality, it is illegal for a public entity to delegate authority in a manner considered improper; therefore, accepting irrelevant considerations also creates ground for illegality. Other than illegality, irrationality is a factor when claiming judicial review; this is brought about by inability to present oneself in appropriate manner. The other condition involves procedural impropriety; this includes a failure to exercise impartiality, biasness, lack of proper consultation and inability to provide logical reasons. In addition, there is another challenge that can lead to judicial review; a judicial review is possible because of the existence of an Act safeguarding human rights. This Act was implemented in 199815; this Act protects individual’s rights against decisions considered unlawful by the EC law. In a case for example, Co-operative Retail Services v Taylor reflects a situation where the convention law is contravened thus creating a ground for judicial review16. On the other hand, the dynamics related to judicial review require an understanding of the process. In the initial stage before the proceedings, there is need to define issues in an understandable legal terms. A number of judicial proceedings commence with a dialogue among the affected parties, this provides an avenue to resolve conflicts without involving the court. A common feature among litigators for a judicial review involves securing a resolution for the claimant in a more speedy process. In this regard, judicial review often forms part of a threat to fast track negotiations. Litigations on the basis of seeking judicial review are common in crisis situations; this normally involves the claimant with no other avenue to seek redress. However, most of complaints presented for judicial review often turn non-negotiable, because the issues to resolve are complex, and pits public bodies against the claimant. An impediment regarding judicial review involves an imbalance of equality between the claimant and the public body. As a result, claimant needs to consult experienced lawyers for legal advice. The litigation, and the settlement approaches depends on the lawyer’s perception regarding the issue involved or claimed. Respect between both parties is also a determining factor in times of clamouring for a settlement17. Divergent views often emerge between the defendant and claimant solicitors; this is created in terms agreeing on the urgency related to the claim at hand. Counter accusations may emerge in terms of the defendants claiming hastiness on the part of the claimant; on the other hand, the claimant may also argue delay tactics on part of the defendants. A relevant example in this respect involves incidences of claimants arguing to have tried to solve an impasse, but the defendants leave with no choice. This leads the claimant to present in court, a proceeding; on the other hand, the defendant may argue for lack of need in terms of file a proceeding by the claimant18. On another note, judicial review has a procedure in terms of filing for a claim19; this involves existence of sufficient interest, otherwise referred to as locus standi. According to the Judge over Your Shoulder, the claimant must obtain substantial reason for the challenge. On another note, Lord Donaldson reiterates that, an application for judicial review must not contain a discretionary bar20. Regarding the protocol related to pre-action, it involves abiding by the CPR (Civil Procedure Rules) Part 54; in this sense, the process of judicial review acts as a final remedy. Prior to applying for a judicial review, the parties affected need to explore other available avenue to obtain a resolution, example includes statutory appeals. A pre- action protocol assists in terms of avoiding litigation, the parties involved in a judicial review need to consult each other for purposes of accessing the rightful information, this helps in avoiding oral examination21. The remedies controlled by courts are regarded as discretionary; this means a deserved claimant is not assured of a definite outcome. According to a handbook by Fordham on judicial review, most application by claimants does not achieve the expected outcome. Other than judicial review which is a final option, there existed other alternatives to seek redress. The alternative option includes raising complaints to departments concerned with decision making. There are also experts who act independently in terms of handling complaints. Complaints can also be presented to legislature or Parliamentary Ombudsman. Since Marbury v Madison22 case, claims related to judicial review are on the increase. The implementation of an Act targeting human rights propelled claim for judicial review, to an extent, the increase is also associated with judicial activism. In the year 1998, claims related to judicial review surged to 4,53923; as a result of an increase of immigrants and asylum seekers, cases calling for a judicial review continue to emerge. Administrative law exists to check on immigration and asylum applications; however, incidences emerge where a judicial review is necessary to check on the decisions by the responsible public authority. From the judge’s point of view, judicial review is an important component in upholding the law; the judges detest the reduction of applications for judicial review. According to judges, judicial review is crucial in terms of checking the public authority’s execution of the statutory powers. Lord Neuberger has argued against interference on the judicial review; moreover, Lord Neuberger explains that, judicial review is important especially where there is a powerful executive. Judicial review in this respect provides control regarding executive decisions; therefore, the openness depends on review by judges24 . The judiciary admits importance of considering the dynamics related to politics in England, this is vital in terms of planning for future amendments related to judicial review. Issues that the judiciary believes are important to discuss include not compromising the sovereignty of the parliament. At the present, the sovereignty of parliament is considered as absolute in nature; however, many view the parliament as a key component of the present day constitution. All courts recognize this view, as pointed out by Lord Carswell; however, in other quarters, a divide exist among the judiciary in relation to expanding the judiciary powers for example when dealing with human rights25. Those clamouring for an expansion suggest an impossibility of an absolute independence of the parliament surviving in modern times; this is because there is an increased advocacy to improve basic and human rights26. In conclusion, judicial review avails an avenue that helps check on executive powers and decisions of the public authorities, this is an important system that safeguards the law. Abuse of power is common among public authorities where there are no checks and balance; therefore, as a result of engaging in judicial review, public authorities maintain accountability. Further, the introduction in 1998 of an Act that safeguards human rights, aggrieved citizens can seek redress in courts. From a personal point of view, judicial review is important in terms of safeguarding the interest of the public against rogue authorities; moreover, issues touching on immigration and asylum are dealt with decorum by following the due process. In essence judicial review has enabled deserving immigrants and asylum seekers to obtain approval of residence status. Further, incidences of abuse from responsible authorities such as the police department continue to reduce, as a result of judicial reviews on decisions by the public bodies. Bibliography Bondy, Varda and Sunkin, Maurice., ‘The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing’ The Public Law Project (2009) < http://www.publiclawproject.org.uk/documents/TheDynamicsofJudicialReviewLitigation.pdf> Accessed 24, August, 2013. British Institute of Human Rights, Response to Ministry of Justice Consultation: Judicial Review: proposals for reform (2013) < http://www.bihr.org.uk/sites/default/files/BIHR%20Judicial%20Review%20Response_SEND_0.pdf > Accessed 24August, 2013. Buxton Richard, Judicial review process (2013) Accessed 24 August 2013. Carter, Claire, ‘Judicial review process to be made tougher’ The Telegraph (2013) Accessed 24August, 2013. Horan, Chris, ‘Judicial review of non-statutory executive powers’ Federal Law Review (London, August, 2013) < http://flr.law.anu.edu.au/sites/flr.anulaw.anu.edu.au/files/flr/Horan.pdf ?> Accessed 21 August, 2013. Horne, Alexander, ‘The changing Constitution: A case for Judicial Confirmation’ House of Commons (2010) < http://www.studyofparliament.org.uk/spg-paper-1.pdf > Accessed 24 August, 2013. Horne, Alexander. ‘Judicial Review: A short guide to claims in the Administrative Court’ House of Commons Library, (2006) . Accessed 24August, 2013. Law Teacher, Judicial Review in United Kingdom (2012) < www. lawteacher.net> Accessed 24 August, 2013. Poole, Thomas, ‘Judicial Review at the Margin’ London School of Economics (2010) Accessed 24 August 2013. Public Law Project, What is Judicial review (2006) Accessed 24 August 22, 2013. Rozenberg, Joshua. ‘Judicial review is increasingly essential, Judges warn government’ The Guardian, (2013) < http://www.theguardian.com/law/2013/feb/13/judicial-review-judges-supreme-court> Accessed 24August, 2013. Williams, David, ‘Administrative Law in England: The Emergence of a New Remedy’ William and Mary Law Review (London, 1986) Accessed August 24 2013. Read More