The Origins of Judicial Reviews

Judicial Review in simple terms is the act of judges being able to interfere with the decisions made by government officials. A government official in this case can be assumed to be anyone with any amount of public accountability, a good example would be anyone that currently holds a position in government; such as William Hague the current Secretary of State for Education. The extent by which a judge can interfere differs by the country, in the US where arguably Supreme Court judges are the most powerful; judicial review wasn’t even written in the original constitution it was added in 1803. In the US these judges can strike down ‘unconstitutional legislation’, this is significantly more than UK Supreme Court judges who cannot do so, but can still exercise the ability to overturn wrongful decisions made by government (as can US judges).
The question then remains, how did judges even get this ability to interfere with government decisions? The concept of Judicial Review was written into Article lll of the constitution after the controversial Marbury vs Madison case, in which Congress and the Supreme Court were found to be in conflict. The delicate and more overarching issue here is whether these unelected judges have the right to intervene in decisions made by elected public officials. By nature a public decision exercised by an unelected individual is illegitimate, so what makes judges distinct from this idea?
The Marbury vs Madison 1803 case forced the courts to lock horns with congress. William Marbury was newly appointed, by President John Adam, the new Justice of the Peace of the District of Colombia. However the papers which gave William Marbury his new powers were not delivered to him. It was found that Secretary of State James Madison had refused to deliver these papers. Marbury appealed to the Supreme Court to issue a ‘writ of mandamus’ essentially a piece of writing that allows the courts to order an individual to perform a particular act. Of course the courts considered issuing this writ, when the Chief Justice John Marshall noticed that this particular writ came into conflict with the Judiciary Act 1789, as the courts were exceeding their constitutional jurisdiction. This act in simple terms forbids the judicial branch from ‘stepping foot’ into the federal branch of government. This separation of branches being established in Article lll of the Constitution.
This lead to a problem, the courts found that there was a problem with the decision made by public official James Madison but there was not much that they could do, as they legally could not issue a writ. Chief Justice Marshall dug deeper and found that there appeared to be a conflict between the Judiciary Act 1789 and Article III of the constitution. Whilst the Judiciary Act 1789 gave the Supreme Court the power to issue writs to anyone, under their jurisdiction (all US citizens), where Article III stated that the exceptions to court decisions would be ‘Regulations as the Congress shall make’. The problem here was the James Madison’s refusal to deliver the papers were considered a Congress regulation as he was a public official.
With the background covered, the decision of the case was a controversial one. What happens when Congress and the Courts clash? Chief Justice Marshall pointed to the judges’ oath to ‘uphold the constitution’ which he and many other judges interpreted as the ability to decide what applies in any given area of legal conflict. It was later written into Article III that judges had the ability to strike down any ‘unconstitutional’ acts of congress in other terms any act that came into conflict with the constitution. After judicial review was written into Article III the Judiciary Act 1789 was later scrapped on unconstitutional grounds, but Marbury never did get his papers delivered and thus his appointment to Justice of the Peace was made void.
The unelected judges vs elected government officials still remains a problem, not so much in the UK however as they cannot strike down legislation due to Parliamentary sovereignty. The issue is perhaps more prominent in the US because as of 2014, the United States Supreme Court had held 176 Acts of the US Congress unconstitutional. Had a US constitution not existed however it would be hard for any judge to justify as to why exactly they are striking down an act from Congress.
This is what is detrimental to UK Supreme Court judges. They can issue a ‘declaration of incompatibility’ in the case where a piece of legislation infringes on an individual’s freedoms, but cannot strike the acts down. For example in 2009 in Wright v Secretary of State for Health, a declaration of incompatibility was issued in relation to the scheme for placing care workers employed to look after vulnerable adults on a list of people considered unsuitable to work with such adults. It declared section 82(4)(b) of the Care Standards Act 2000 to be incompatible with the right to a fair trial (Article 6 ECHR) and to respect for private life (Article 8 ECHR). As mentioned before, the lack of a British Constitution makes is difficult for judges to launch more effective reviews. As of current times, the judges only really have the European Convention of Human Rights and the Human Rights Act as scope for incompatibility. The problem here being that both this legislations can be repealed through Parliaments sovereignty. All that has to be done is withdrawal from the EU (via the repealing of the European Communities Act 1972) which would make the ECHR void and then the simple repealing of the Human Rights Act 1998.
Both of these situations seem very possible, with a potential in/out EU referendum in 2017 and Home Secretary Theresa May calling for the Human Rights Act to be scrapped/modified should the Tories win the next election.
The debate over judicial review isn’t a simple one, as the arguments on each side appear equipollent and are much too lengthy to go into detail in this article.

Kasim Ali Mehmood

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