The legislature itself has certain responsibilities in the way in which it frames legislation, or in the manner in which it effectuates more general administrative changes. The judiciary may well have to fashion appropriate tools of review to deal with these novel institutional changes. Legislation or law making can be made by a government body or a legislator (Bentham, 2007). Before the legislation initiative becomes law, it is known as a bill accepted (or rejected) by the state bodies. Changing in legislation can be proposed by a member of the parliament or other legislative body. Legislators are those bodies which create legislation while the judicial branch only interprets laws.
In the UK, the interrelationship between the courts and the legislature within the area covered by public law should, therefore, be seen as two-dimensional. The courts must be aware of the appropriate limits to their judicial role. Yet the legislature itself has responsibilities in the way in which it enacts legislation, whether particular or general; and the courts may well have to be creative in order to mould doctrine to meet the needs of a changing administrative environment. It is commonly acknowledged that the courts should not, in the context of an action for judicial review, substitute their views on the merits for that of the original decisionmaker (Craig 1994). All legal systems have to find the appropriate balance between legal controls over the exercise of discretion and the avoidance of judicial substitution on the merits of the case. Where differing legal systems draw this line is often of crucial importance. Two recent decisions show that the courts in the UK are fully aware of the need to avoid judicial substitution of judgment, whether directly or indirectly.
The court has a very broad jurisdiction to review all legal regulations for consistency with the Constitution and also to judge that the parliament has violated the Constitution by failing to enact laws that it is constitutionally required to adopt. These powers the court uses frequently. (2) The court is constitutionally required to declare regulations unconstitutional if any interpretation of the regulation in question can be deemed unconstitutional, even if there are interpretations of the law that also would be constitutional. (3) The court can be petitioned at any stage in the lawmaking or law application process (Hayek, 1982).
The prime minister, for example, can ask the court for an abstract interpretation of a constitutional provision before a law is even in first draft, but once a law is enacted anyone can ask for a review. In between, a substantial group within the parliament or the president of the republic can ask the court to review a law before voting on or signing a law. In its first five years of operation, the court has struck down about two hundred statutes and administrative regulations, and of that number about half were new enactments and half were old laws that were judged to be inconsistent with the new constitution (Shapiro & Sweet 2002). This legislation will also indicate what role the minister is to have within that particular area. The minister may, for example, be able to give statutory directions to the agency, or ministerial approval may be required before certain courses of action can be taken. Any legal action for judicial review will normally be brought against the agency in its own name, unless the applicant is seeking to impugn a particular decision taken by the minister (Bentham, 2007).
The process of legislation reforms is similar to law making. The first stage involve identification of laws and procedures that require changes. Proposals come from different sources including judges and commissions. The next step is to accept a bill. The bill is recommended to a legislature. Pf the majority approve the bill it becomes a law. Legal doctrine within the UK places no formal constraints as such on the nature of the subject-matter which can be contracted-out. This general statement must be broken down into a series of more specific propositions (Shapiro & Sweet 2002).
Firstly, the doctrine of Parliamentary Sovereignty, as understood in the UK, means that, in principle at least, it would always be open to Parliament to contract-out any task, provided that a statute made it clear that it was Parliament’s will that this should be done. One can of course posit extreme examples, where a statute purports to contract-out a ‘core governmental function’, such as the general practice of adjudication currently undertaken by the ordinary courts, to a private party (Hayek, 1982). In such an instance the established judiciary would certainly construe such legislation extremely narrowly, and apply it in the most limited fashion possible. If this interpretative technique did not suffice to blunt the force of the hypothetical legislation, then the established judiciary would have to decide whether to refuse to apply such a statute, and thereby create a qualification to the traditional idea of Parliamentary Sovereignty in the UK. Subject to this caveat, administrative and constitutional law doctrine does not place impediments upon the nature of the subject matter which can be contracted-out (Shapiro & Sweet 2002).
A statute may not even be necessary in order to effectuate the desired changes. Thus the reforms which instituted the Next Steps Agencies were not even enshrined within a statute, the assumption being that this was merely a species of administrative reorganisation of the civil service, a matter within the prerogative of the government of the day. Thirdly, it is open to the government of the day to enact a general statute which will facilitate the discharge of government functions by bodies to which power has been contracted-out (Shapiro & Sweet 2002). The effect of this legislation will be considered in more detail below. Suffice it to say for the present, that the passage of this legislation was not felt to entail any issue of constitutional principle by the ministers which introduced and piloted the statute through Parliament.
Bentham, J. 2007, An Introduction to the Principles of Morals and Legislation. Unknown.
Craig, D. 1994, Administrative Law, 3rd ed., London, Sweet & Maxwell.
Hayek, F.A. 1982, Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy. Routledge; New Ed edition.
Shapiro, M., Sweet, A. S. 2002, Law, Politics and Judicialization. Oxford University Press.