Elective Dictatorship and Judicial Review

Topic arising from the title of this essay is present, especially in these days. However, its background can be found in the history of every democratic nation. This essay is concerned about elective dictatorship and judicial review. At first there will be explained what the elective dictatorship is, using the statements of Lord Hailsham and Baron Montesquieu. That is followed by the judicial review itself – how it is defined and its process. The last part consists of judicial review in the two democracies which have common history with the UK – France and the U.S.A. The essay is concluded by answering the question whether judicial review is a safeguard against elective dictatorship in the UK.

Elective Dictatorship:

Elective dictatorship is in the UK narrowly connected with the name of Lord Hailsham [1] . He criticized the rules of elections, but more importantly he stressed that party which wins the elections creates the government and gets majority in the Parliament. It means that executive and legislative branch is connected, and forms the basis for the term elective dictatorship. This opinion is in contradiction to what Walter Bagehot [2] calls the ´close union´ and ´efficient secret of the English constitution´. However, from the current view more realistic is to take the opinion of Lord Hailsham. [3] As it comes from the definition, the crucial is separation of powers. That has been the topic over the centuries from Aristotle, through Montesquieu until today. It was confirmed for several times that three central powers of the state –

executive, legislature and judiciary has to be separated, only in that state can be established justice and liberty [4] . As Montesquieu stated:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…” [5]

Applying the doctrine of separation of powers (according to Montesquieu), it is likely to say that abuse of those powers arises. However, in the UK it is defended by saying that ´close union´ between the legislature and executive is ´responsible government´. That creates the checks and balances due to which government is controlled by the Parliament – democratically elected – and responsibility is not only of the whole government, but also of its individuals. [6]

The separation of powers is not the base of the British constitution, and so there are arguments whether it is correctly approached. Marshall would say that the approach is incorrect, whereas Lord Diplock and Donaldson MR said that British constitution respects the doctrine of separation of powers fully. [7]

Judicial Review in the UK:

Judicial review can be defined as part of administrative law, which controls the legality of the decisions of public bodies (not its merits). These decisions should not exceed the powers given to them by delegated legislation, usually in the form of statute. It consists of limits of the actions for the particular body. In the case that decision is beyond these powers of public body, it acted “ultra vires”. If that happened,

then the judicial review comes in. However, the role of courts is also limited. As Lord Donaldson MR in R v Boundary Commission ex parte Foot 1983 [8] explained – by quotation of Sir Churchill [9] – the role of judge in administrative proceedings. That is the courts and judges should only interpret the law within its scope, because they understand it, but not to intervene with. The legislative body is Parliament, and its will should be respected, at first place by the Courts. [10] According to the Dawn Oliver, judicial review today, is mainly about the citizens´ protection, rather than the controlling mechanism for power abuse. [11]

There was also defined a sub-classification for the judicial review by Lord Diplock in the case of Council of Civil Services Unions v Minister for the Civil Service 1985 [12] . That consists of illegality, irrationality, procedural impropriety and proportionality. It is thought that natural justice is included in the procedural impropriety as a safeguard of the fair trial. [13] There arise also the issue of non-justiciability, where even though public body has acted ´ultra vires´, the court rejects the application for the judicial review. It includes variety of areas [14] such as: foreign affairs (treaty-making power) and national security as explained by Lord Denning MR in Blackburn v Attorney General 1971 [15] , R v Secretary of State for Home

Department ex parte Hosenball 1977. [16] Moreover, there is issue of law enforcement, where judicial review is not likely to enter into the way how police enforce the law (though it is not unlimited), similarly same position is in the cases of prisoners [17] . And finally there belongs political decisions of Parliament, which falls into debates, until passed by the House of Commons, according to the lord Scarman. [18]

Generally, the starting point for judicial review is the abuse of powers – acting ´beyond the powers´ or ´ultra vires´. That can be divided into substantive and procedural part. The substantive part means that the public body has power to do some particular actions. If it does something more or else then there arises substantive ´ultra vires´. The procedural one concerns the rules how particular action should be performed. Again, when public body does not follow the prescribed procedure it is said that it acted procedurally ´ultra vires´. There exist also third view and that is the abuse of powers. It is characterised by acting unreasonably, even though ´intra vires´ by powers and procedures, but with unknown or hidden motives. [19]

The application for judicial review has two parts. At first, there is ´application for leave´, this is the hearing at the Queen´s Bench Division, without the presence of one party – ex parte, to separate from applications without sufficient interest. It can be said that merits of the case are also considered, but they do not create the major part. There has to be established ´locus standi´ in order get further. Locus standi is a proof

of sufficient interest in the issue brought by application. [20] Lord Scarman defined it as “…necessity to establish the prima facie case, which clearly demonstrates, where the breach of the public body has occurred…” [21] The second part considers mainly the merits of the application (possible also locus standi). The time limit is seen as severe. The application has to be made within three months from the time when the matters for the application were created. There are some exceptions of extension, but it has to be decided by the Court. [22]

Judicial Review in France:

In France, the administrative law is uncodified, but there is an effort to do so by Acts, which it relates. There is possible to apply for the judicial review (recour pour excés de pouvoir) not only on the ´grounds of general regulations´, but also legislative measures (réglements). Therefore, it can be said that the ground for judicial review (contentieux administratif) in France is much broader than the one in the UK. Détournement de pouvoir is much bigger that the ultra vires principle in England, which is bound by the accordance with the statute. The other ground for judicial review in France is ´violation de la loi´, which has [23] three sub-classes: ´substantial mistake in fact characterisation´, ´mistake of law´ and ´proportionality or balance sheet´. [24] It appears in cases like Institut Technique Privé de Dunkerque case 1980 [25] or Ville Nouvelle Est de Lille 1971 [26] . To present the reasons for

application in administrative law is not compulsory. Cases are usually decided as judicial review according to the presented facts. [27] In the administrative proceedings there is also a position of government commissioner (commisaires du gouvernement), whose role is not to be on the side of government, but to present his opinion on the case. [28] The time limit for the application for judicial review is two months, however the execution orders has to be made within 2 weeks. [29]

Judicial Review in the U.S.A.:

In the U.S.A. is judicial review seen as central element of the administrative law. After the Act passed through the Congress, it gives powers to the public bodies to perform its role. When these powers are exceeded the judicial review steps in. In the U.S.A. operates the federal system, so all the Acts about the judicial review are federal ones. With the judicial review operates in the U.S.A. chain of American Administrative Courts, headed by the Supreme Court.

Judicial review in the U.S.A. is prohibited in the cases that bring questions of Constitution. American “Lord Denning” Justice Louis D. Brandeis in the case of St. Joseph Stock Yards Co. v U.S.A. 1936 said: “The supremacy of law demands that there shall be an opportunity to have some court decide…whether the proceedings in which the facts were adjudicated was conducted regularly.” There is constitutional right for judicial review.

In the judicial review process is applicable only the evidence given to the agency – the one that was the first which made the decision. Court will consider this instead of reviewing the new evidence. But if the Court decides that the new evidence should be presented, it can ask for it. Judge usually calls expert in particular field to express his professional view. Questions of a fact are considered in the American judicial review only when supported by sufficient evidence (“reasonable mind accept theory”). These facts are then given to the professional in field for consideration. It can be said that here is crucial reasonableness, rather than correctness. All that Court will require is to give reasonable evidence to support its decision, even constitutional rights. So Courts in judicial review will “determine only the reasonableness, not the rightness of these administrative determinations”. There also operates Chevron doctrine (Chevron v NRDC 1984). It defines how the statutes should be reviewed. First of all, statutes are governed by the intention of Congress that has to be respected. But when the statute has double – meaning then the agency govern by it has the power to explain the meaning. This can be upheld by the Court on the ground of reasonableness, even if it is not right, Court will follow the interpretation of the agency. That applies until the Court finds that it is not in accordance with the intention of Congress. The question of fact should be answered by the administrator – the expert, and reasonableness is left to the Court. The time limit for the application is 90 days. Despite the criticism of Chevron doctrine (reasonableness v rightness) it is still base of the American administrative law. [30]

Conclusion:

To conclude this essay it is necessary to answer the question in its title. It seems that what Lord Hailsham called elective dictatorship still operates in the UK. The reform of creating the Supreme Court (first sat in October 2009) [31] only put apart judiciary and legislature. Following the example the U.S.A. with the Supreme Court should be only the beginning of the process of fulfilling the doctrine of separation of powers. However, there is still need to divide also executive from legislature. That seems to be the problem in the UK, because of the supremacy of Parliament, doctrine of separation of powers cannot be completed. And if separation of powers is not complete, then judiciary and especially judicial review cannot act as a safeguard. It also might be helpful to follow most of the democracies of the world and codified the constitution in order to success.

Another problem lies in the narrow basis for the judicial review in the UK. It suggests making it broader as it is in France. This can help also to make more sufficient the process of checks and balances in the UK. However, until at least the separation of powers will not be completed it is impossible according to what is written above to speak about judicial review in the UK as a safeguard against the elective dictatorship.