Elective Dictatorship

“Most democracies have developed a variety of safeguards against elective dictatorship.” (Brittan, 2009) Critically discuss whether judicial review operates as an effective safeguard against ‘elective dictatorship’.

Electorate dictatorship is a key issue in modern time. Sir Samuel Brittan sated “Most democracies have developed a variety of safeguards against elective dictatorship.” This coursework will define the brief concept of democracy, elective dictatorship, including judicial review and also explore the whether the judicial review operates any safe guard against elective dictatorship.

General meaning of the democracy is rolled by the citizen, which means in democracy system citizen are supreme power, they elect their political representative by free fair election. Therefore in democratic system political representative remains accountable to the citizen and the constitution also guarantees basic personal and political rights, civil liberties, fair and free elections, and separation of power between executive, legislative and judiciary where judiciary will work independently.

Today majority’s countries in the world are democratic such as United State of America. In United Kingdom however constitutional monarchy, which means that a monarch act as head of working within prime minister. In Britain, there has been much discontent with the workings of democracy. A discontent which finds expression in widespread criticism of the operation of parliament supremacy, unwritten constitution trust in politicians is not at present very high, and absence of separation of power between accusative ,legislative and judiciary. the House of Commons govorning party can pass any act because of their majority members, where its opposition can veto on bills because of minorities. the executive dominates and controls the legislature, after A fundamental change was introduced in the Parliament Acts of 1911 and 1949, now powers of the Lords in legislative matters was restricted to being able to impose a temporary veto on public bills. Those tends to give rise to ‘elective dictatorship’. The elective dictatorship phrase has defined by Lord Hailsham in his academic paper[1].

Judicial review of executive action is an essential process in the constitutional democracy founded upon the rule of the law. English administrative court has given judicial review power to determine whether adjudicatory exercised their power within the ultas vires or intra vires which is laid by statues also known as Act of parliament or Primary legislation, when lawfulness of government decision is challenged by the citizen. Under the Supreme Court Act 1981 s.31,where applicant has sufficient interest in the matter to which application and application of review will be granted by the High court and the Civil Procedure Rules 1998 to review the lawfulness of government bodies decision which will challenged by the member of the public.

In case of GCHQ[2] the House of offers the principles grounds for judicial review namely, illegality which means that the decision maker acted beyond its power as defined by the Act of parliament It must be shown that there has been ultra vires or error of law or fact in the course of arriving at its decision , irrationality where the court will ask whether the decision is so unreasonable that no reasonable authority, properly directing itself, could ever have come to that same decision. This is known as the test of Wednesbury[3] . and procedural impropriety are brought where the decision is considered to have offended the rules of natural justice. It was accepted that further grounds for review, such as ‘doctrine of proportionality’

The English court’s acknowledged traditional the Diceyan concept of parliamentary sovereignty meant that the judiciary cannot challenge the substance of legislation, therefore the scope of judicial review are limited administrative court only can challenge delegated power if acted beyond the given power by the act, court cannot strike down even this statues in some respect unjust and court cannot also challenge some prerogative powers. Judicial review has been extended by using doctrine of proportionality under the Human Rights Act 1998 to review of administrative action to determine its compatibility with Convention requirements however this also limited. The above limitations will discussed below.

In process of judicial review courts are allowed to challenge delegated legislation which made by the ministers to delegated law making such as local authorities, tribunals, state agencies as ultra vires if it exceeds the scope of authority confirmed by primary legislation or if the correct procedures have not been followed which was defined by Lord Diplok In the case of Hoffman La[4]

In the process of judicial review judges are unwilling to question the legitimacy of statutes unless there is some question as to them not being passed using the correct procedure. The court has no power to strike down any Act of the principle of parliamentary sovereignty and to contravene Dicey’s version of the rule of law, even though court agreed that it was wrong. This will be illustrated by following cases

government department dominated citizens when they has given too wide power through the status to arrest citizen or seize their property on drought without given any reason in that situation the court had follow the status even some areas of the status was wrong and against of natural justice as regard case of Liversidge[5] and in case of Rossminster Ltd[6].

The judiciary has no power to question to question about validity of Act of Parliament, even thought government has passed this act in illegal way, separation of power was preserved, it can illustrated by the case of Pickin[7]. this similarly applied in most recent case of Jackson[8]. In such cases although UK courts are bound to follow the statues regardless of how fair, just or practical they are, it is not only judges job to apply the statutes but also to give their interpretation as to what parliament hoped to achieve by such a statute. In case of Pepper[9] the English court was first time willing requested for hansard to give correct interpretation of the statues.

Often parliaments includes ouster clauses in statues to exclude the court to review, appeal or inquiry on the governmental activities. this types of act has been passed simply because of governmental knows that if they allows to involve judiciary it may interfere their policy which are against of natural justice, court however did not strike down those act but they suggested that parliament cannot exclude the judiciary power to review as are demonstrated by the following cases In case of Gilmore[10] and in case of Anisminic[11].

From above example indicated that political government can pass any law in for their own political purpose in to the parliament and court cannot challenge this law. Government use act of parliament as a sword and parliament sovereignty as shield to protect from judiciary. In case of Madzimbamuto[12] Lord Reid set out the accepted principle governing the powers of parliament [13].

Under English constitutions a number of powers reserved to the executive, powers which are exercisable without the passage of legislation, they are known as prerogative power. The administrative court how far can challenge the prerogative power. This will be explained by following cases.

When statues are enacted properly, just because of political reason court has been rejected to use prerogative to suspend the statues, as case of Keyser’s Royal Hotel Ltd[14] and In case of Laker Airways[15] both cases The court protected the sovereignty of the parliament in political as well as legal sense. The prerogative power however again issue in resent time, judges faced difficulty to challenged prerogative power in resent cases when government use prerogative power under the statues in GCHQ[16] in this case the government has reinstated the right of workers to join trade by using prerogative power, but is this case prerogative remain unaffected from judicial review, because of highly public policy. It could be argued that by using such prerogative power government can deprive citizen right if they want. The court declared that some prerogative power would not subject to judicial review such as such as the appointment of ministers, dissolution of parliament, grant of honours, treaties, and par excellence matters of national security were not appropriate subjects for review by the courts. The court cannot also challenge the prerogative power when government used under defence policy and they have been used under the statues, in case of Northumbria Police Authority[17].

Government when ratify a treaty by using prerogative power to avoiding parliamentary disapproval, such prerogative power for treaty making was a non reviewable in case of Rees-Mogg[18] this prerogative power clearly shows that this a non democratic practice to pass a treaty, even citizen has no willingness to accept it.

Judicial review also rejected when government use prerogative power on foreign policy in case of Nuclear Disarmament[19] CND challenged the legality of the decision of the Government to send troops to Iraq. Such matters are not reviewable by the courts. resent inquiry report indicate that there was no necessities to join this war, it was purely political, again they use prerogative to avoid defeat by the parliament , It was well known that citizen of UK was completely against of this war, but they has no right to challenge government decision, this rarely possible in proper democratic system.

Although some prerogative power are non reviewable by the court by court because of highly public policy, however when prerogative power used in private affairs it can be reviewable by the court and judges can challenges this prerogative power in case of Ex parte Bverett[20] under prerogative power the Secretary of State refused to renew applicant’s passport and no reasons was given. in this case court established every individual right by challenging such progressive powers.

It could be consider that UK constitution political control over the exercise of prerogative power. This power given tend the government to be a electro dictatorship. However 1988 Tony Benn introduced crown prerogative bill to control prerogative powers, this bill provide that list of prerogative require an assent from house of Common before taking legal effect.

The doctrine if proportionality is a judicial has been developed by the court of human rights to enforce convection rights. Judicial review has an extend power under the Human Rights Act 1998 to determined of administrative actions whether it is compatible with European Convention of Human Rights requirement or not. The act however has some limitation and not given higher statues then Act of parliament, its White Paper[21] the government did not give power to the court to strike down any act of parliament by using this act. Under s.3(1)[22] court can only interpret and under s.4 (2)[23]court can declare incompatible act of parliament if any areas of act breach convention rights, but s.3(2)[24] and 4(6)[25] made it clear incompatibility requirement does not affect the validity of statues, continuing operation. This can be illustrate by Crime and Security Act 2001, UK government introduced this act shortly after USA 9/11 incident, this act provided wide power to home secretary detained someone who were suspected for terrorist activities in indefinitely period if time without any trail which is clearly breached of Art.5 of European convention of Human Rights in case of A v. Home Secretary[26] The court made declaration of incompatibility some areas of act, however it still remain in force ,the government came under presser to introduced a new legislation scheme that would be more in keeping with human rights principle as result the government introduced new act Terrorism Act 2005 that provides for use of ‘control order’ the judge making the order upon material received in closed hearing the nature of which was not disclosed to the appellant, this act made incompatible by the court in case Home Secretary v MB[27] and provision still remain in force this again made declare incomputable by the House of Lords in case of Secretary of State for the Home Department[28] the court ruled held that where the failure to disclose closed material to the controlee would be incompatible with the article 6 requirement of a fair trial. Thereby, parliament’s sovereignty and the separation of powers have been preserved.

Judicial review in other countries:

In united state of America under the judiciary act which has been passed by the congress in 1789, the federal court has given power of judicial review over the state government. This was first time used by the US Supreme court on case of Hylton[29] Supreme Court has protected the rights of individuals in the minority against abuses by the federal or state governments[30].

Indian Supreme court hold ultimate power to interpreted the constitution, parliament can pass law with in their jurisdiction but this not absolute Indian Supreme Court strike it down if law is invalid or ultra vires thus the court protects individual rights. The Indian government tried to restrict Fundamental Rights, by changing constitution through the Parliament and they passed the first (1951), fourth (1955), and seventeenth amendments (1964) to protect its authority to implement land redistribution. TheSupreme Courtcountered these amendments in 1967 when it ruled in the case of Golaknath [31]and held that Parliament did not have the power to restrict the Fundamental Rights.

Considering above it could be concluding that In English constitution, political government has given too wide power to create a law, by using house of common or prerogative power or Civil Contingencies Act 2004 s.26 (any minister can make law without parliament in emergency), or Legislative and Regulatory Reform Act 2006 (allows any minister to change law) those power creates a scope to become elected dictatorship. Separation of power has been preserved because of parliament sovereignty therefore judicial review cannot strike down any primary legislation, cannot challenge some prerogative power, judicial review has only one instrument such as Human Rights Act 1998 to challenge central government decision, but this also limited therefore comparing with other above mentioned countries UK courts are not above on parliament and judicial review are not giving adequate protection to citizen against elective dictatorship. Judicial review can only challenge government departments if they are acted beyond of their power which has given by the statues. Although judicial review is not giving direct protection against government decision, but some extent judiciary are giving indirect protection such as firstly when court made comment on any statues or declaring incompatibility government taking this advice from the court changed their law accordant through the parliament, secondly when court indirectly challenged on using of government prerogative powers through the various cases, it also drawn to the government attention therefore government tried to restrict those powers, thirdly Constitutional Reform Act 2005 which established the supreme court in UK. The new court is not like others of the same name around the world. It has no power to nullify acts of parliament as unconstitutional; however The first hearing in the new UK Supreme Court is a challenge to government powers to create laws without a vote in Parliament. This indicated that there is check and balance between judiciary and executive, and government trying to move away from elected dictatorship, to more democratic process as example of Freedom of Information act 2000 where provides citizen has rights to get information about public bodies.

http://news.bbc.co.uk/1/hi/uk/8289949.stm

[1] (MARYLEBONE, QUINTIN HOGG HAILSHAM OF ST. The Dilemma of Democracy Diagnosis and Prescription)the phrase elective dictatorship in his academic paper written in 1976. Elective dictatorship refers to the fusion of powers of the executive and the legislature; where the legislature is drawn from the executive therefore resulting in dominance of the executive over the legislature. Firstly the executive’s majority in the House of Commons reinforces the executives dominance. Elective dictatorship occurs in conjunction with this situation and that of the governing party, the executive. The party in power will by definition have more seats, i.e. more voting power than all the opposition parties. This means that any legislation or motion proposed by the governing party could be passed unless government MPs dissents, because only a simple majority is required. Due to the strength of the whip system to prevent MPs of the governing party voting against it, in practice government bills are extremely rarely defeated.

[2] Council of Civil Service Unions v Minister of State for Civil Service (1985)

[3] Associated Provisional Picture Housing Ltd v Wednesbury Corp (1948)

[4] Hoffman La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128 Lord Diplock stated that, ‘in constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation. I entertain no doubt that the courts have jurisdiction to declare [subordinate legislation] to be invalid if they are satisfied that in making it the minister who did so acted out with the legislative powers and ultra vires by reason of its contents or by reason of defects in the procedure followed prior to it being made’ .

[5] Liversidge V Anderson (1942) in this case the home Secretary could use reg 18b to imprison anyone he thought was of hostile origins. He did not need to offer the court any evidence to show that his belief was reasonable. The House of Lords accepted government power; court however suggested that through the act to much was given to the Home Secretary.

[6] R v IRC, ex p Rossminster Ltd (1980) The Inland Revenue had certain powers under s20 of the Taxes Management Act 1970 to apply to the court for a search warrant in connection with suspected tax fraud, without providing any details to the suspected person. the suggested that parliament should reconsider this act, because Inland revenue has given too wide power through the act.

[7] Pickin v British Railways Board [1974] AC 763. In this case the plaintiff arguing over the validity of a private Railways Act. Lord Reid reiterated the words of Lord Campbell in Edinburgh and stated in judgement, ‘For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Courts are ignored any investigation for the validity of act the statues the avoid conflict between parliament and court. Court also agreed that the whole trend of authority for over a century is clearly against permitting any such investigation.

[8] Jackson v Attorney General (2005 UKHL 56)in this case the appellant challenged the legal validity of the Act of parliament because that the Parliament Act 1949 is not an Act of Parliament and is consequently of no legal effect. Accordingly, the Hunting Act 2004 has no legal effect. The court held that the 1949 Act and the 2004 Act are Acts of Parliament of full legal effect.

[9] Pepper v Hart [1993] AC 593 The court held that Hansard should be permitted. Indeed, it is only in such cases that reference to Hansard is likely to be of any assistance to the courts.

[10] R v Medical Appeal Tribunal, ex p Gilmore (1957) under the National Insurance (Industrial Injuries) Act 1948. S.36(3) provided that, the tribunal’s decision ‘shall be final’ Decisions as to a claimant’s entitlement were initially to be made by a government employee. a formula which seemed to remove the individual’s right to seek review of the tribunal’s decision in the courts. Denning L.J. stated that this status seems high political statues and contradictory to the Diceyan principle of the rule of law namely that individual citizens should always be able to challenge the decisions of government bodies before ‘the ordinary courts’. Denning suggests that Parliament may ‘suspend’ this principle if it wishes.

[11] Anisminic Ltd v Foreign Compensation Commission (1969) Parliament judicial review of commission decision by the ouster clause in s 4(4) of the Foreign Compensation Act 1950. The court however reviewed commission decision on the grounds that the Commission had made an error of law in its decision making process. but the court was not challenging parliamentary sovereignty by declaring the Commission’s action unlawful.

[12] Madzimbamuto -v- Lardner-Burke [1969] 1 AC 645; [1968] 3 All ER 561

[13] Lord Reid stated that “It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid”.

[14] Attorney General v de Keyser’s Royal Hotel Ltd (1920, under the Defence of the Realm Act 1914, for compensation due as a result of occupation by the armed forces in wartime. The government sought to rely on the prerogative under which a lesser, discretionary sum of compensation would be payable. The House of Lords rejected the government’s right to rely on the prerogative, holding that, once a statute had been enacted, the prerogative power will inactive the statues for the duration of the life of the statute.

[15] Laker Airways v Department of Trade (1977) Mr Freddie Laker had both applied for designation under the Bermuda Treaty and had been granted a licence under the Civil Aviation Act 1971. A change in government led to a change in policy, and it was decided that British Airways should have a monopoly on the trans-Atlantic route. The court also rejected the government’s prerogative power and it was held, defeat a statutory right by use of a prerogative power.

[16] Council of Civil Service Unions v Minister of State for Civil Service (1985).

[17] R v Secretary of State for the Home Department ex parte in this case prerogative power ‘to keep the peace’ was pleaded as an alternative to the existence of power within the Police Act 1964: The Northumbria Police Authority sought judicial review of the legality of the Circular. the Court of Appeal held that by using prerogative power the Secretary of State had not acted ultra vires.

[18] ex parte Rees-Mogg [1994] 2 WLR 115 applicant challenged the authority of the government to ratify the Treaty on European Union (Maastricht Treaty). The application for judicial review was rejected.

[19] Nuclear Disarmament v Prime Minister [2002] EWHR 2777 . Rlchards J stated that, it is unthinkable that the national courts would entertain a challenge to a government decision to declare war or to authorise the use of armed forces against a third country. That is the classic example of a non-justiciable decision’.

[20] JR v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bverett [1989] QB 811

[21] White Paper, Rights Brought Home: The Human Rights Bill, Cm 3782, 1997, London: HMSO, para 2.14.

[22] S.3(1) of Human Rights Act 1998 stated that primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights

[23]S. Under s. 4(2) of Human Rights Act 1998 if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

[24] s.3(2) of Human Rights Act 1998 makes it clear that this incompatibility requirement does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.

[25] s.4(6) of Human Rights Act 1998 contains a vital limitation, in that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in question, and is not binding on the parties to the proceedings in which it is made.

[26][ 2005] 2 AC 68.

[27] [2007]3 WLR 642

[28] Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other [2009] UKHL 28, http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm

[29] Hylton v. Virginia (1796). http://www.indianchild.com/judicial_system_india.htm

[30] (Patrick 2001, 182). http://www.indiana.edu/~ssdc/judrevdig.htm

[31] Golak Nathv.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC