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2 Judicial Review in the United Kingdom 3 Judicial Review in Canada |
Judicial Review in the United States
The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The ultimate court for deciding the constitutionality of federal law is the Supreme Court of the United States. The ultimate court for deciding the constitutionality of state law under state constitutions is the highest appelate court in each state -- usually called a Supreme Court, but also sometimes known as the Court of Appeals.
Judicial Review in the United Kingdom
In the case of the United Kingdom, such a power conflicts with the principle of parliamentary supremacy, though United Kingdom courts have been able, through concepts such as the rule of law and the prerogative writs, to control the arbitrary excercise of government power. The incorporation under the Human Rights Act 1998 of the European Convention on Human Rights has attempted to strike a balance, by allowing U.K. courts to issue a "declaration of incompatibility" regarding offending legislation, leaving it to parliament to make any necessary changes.
In the Courts of England and Wales, judicial review is more commonly used to refer to the exercise of the prerogative writs of mandamus, habeas corpus, certiorari and prohibition by the Administrative Court. These are ancient writs issued by the courts against (in particular) the executive branch of government where the executive has acted unlawfully. The two most important powers are to force the executive to reconsider a decision, or to prevent an unlawful act from taking place in the future. The grounds for such judicial review include capriciousness, bias, failing to take account of relevant factors and so-called "Wednesbury unreasonableness" - that is a decision so unreasonable that no reasonable person could properly have reached it. The courts will not interfere, however, if the decision, although arguably flawed, was one that was arguably open to the executive to reach.
Judicial Review in Canada
In Canada, the same principle applies as in the British parliamentary system, though since the Constitution of Canada created a federal state there was an issue of the division of powers so while there were questions regarding judicial review when jurisdictional conflicts arose, there was no clear power to overturn laws based upon other grounds. It is important to note that the courts in each province, while provincial, are courts of plenary jurisdiction under the Canadian constitution and are held to have the traditional powers of judicial review such as in England and Wales. Regarding the review of administrative decisions by public officials the concepts of fundamental justice and overturning of patently unreasonable decisionmaking have developed along with the evolution of the royal writs as in the United Kingdom.
In 1982 when the patriated Canadian Constitution came into force the Canadian Charter of Rights and Freedoms created a clear written power of judicial review. In that document, the Supreme Court of Canada was granted the power of judicial review beyond the power that it had held prior to that date. This power can be overridden by governments by invoking the notwithstanding clause in legislation. However, it is a mechanism which is considered increasingly dangerous politically as the public respect for the constitution and its Canadian Charter of Rights and Freedoms increases over time.