The Unlawful Law: Is It Possible?

The concept of a law being unlawful may seem paradoxical, but it is a valid question in the context of judicial review, where the lawfulness of government decisions is scrutinised. In a judicial review, a claimant can challenge a government decision, and if the claimant prevails, the court may declare the government's decision unlawful or invalid. This process serves as a check on government power, ensuring that policies or actions do not violate the law or infringe on fundamental rights. While the courts cannot overturn primary legislation passed by parliament due to the UK's constitutional framework, they do have the authority to overturn secondary legislation created by ministers. This intricate interplay between different branches of government underscores the complexity of determining whether a law can be unlawful and highlights the importance of judicial review as a mechanism to uphold the rule of law and protect citizens' rights.

Can a law be unlawful?

Judicial review

In the UK, judicial review is limited to the decisions of officials and public bodies, and secondary (or delegated) legislation. The court may impose an injunction upon the public body, and if the court finds the decision unlawful, it may have it set aside (quashed) and possibly award damages. There are three main grounds for judicial review: illegality, procedural unfairness, and irrationality. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself.

In the United States, judicial review is the legal power of a court to determine if a law contradicts or violates the provisions of existing law, a State Constitution, or the United States Constitution. The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the U.S. Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution.

In both the UK and the US, judicial review serves as a check on the power of the government or legislative body, helping to prevent the abuse of power and protect individual rights.

Equality Act 2010

In the UK, a judicial review is a court case in which a claimant can challenge the lawfulness of a government decision. If the claimant wins, the court can declare the government's decision unlawful or quash it.

The Equality Act 2010 is an Act of Parliament in the UK that consolidates, updates, and supplements previous anti-discrimination laws. The Act protects people against discrimination, harassment, or victimisation in employment, as well as when using private and public services. The protected characteristics under the Act include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The Equality Act 2010 replaced several previous pieces of legislation, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, and three major statutory instruments protecting against discrimination in employment on grounds of religion or belief, sexual orientation, and age. The Act also goes beyond the EU's Equal Treatment Directives by protecting against discrimination based on nationality and citizenship.

The Act includes provisions for single-sex services, where restrictions are deemed "a proportionate means of achieving a legitimate aim". It also requires employers and service providers to make reasonable adjustments to ensure their workplaces are accessible to disabled people.

The Equality Act 2010 came into force on 1 October 2010, introducing a basic framework of protection against direct and indirect discrimination, as well as harmonising the thresholds for reasonable adjustments for disabled people. The Act also changed the definition of gender reassignment by removing the requirement for medical supervision.

In conclusion, the Equality Act 2010 is a comprehensive piece of legislation that consolidates and strengthens protection against discrimination, making the law easier to understand and providing clear guidance on unlawful treatment.

Human Rights Act 1998

A law can indeed be unlawful. This can be determined through a judicial review, a court case in which a claimant challenges the lawfulness of a government decision. A judicial review can be carried out if a government decision is deemed to be illegal, procedurally unfair, or irrational.

The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. The ECHR protects the human rights of people in countries that belong to the Council of Europe, which includes the UK. The Human Rights Act 1998 is therefore the main way that the UK ensures that the rights set out in the ECHR are secured within its jurisdiction.

The Human Rights Act 1998 outlines the human rights that individuals in the UK are entitled to in a series of 'Articles'. Each Article deals with a different right, and these are commonly known as 'the Convention Rights'. For example, Article 2 protects an individual's right to life, and the police have a positive duty to protect an individual if they know their life is in danger. If the police fail to act, they may be in breach of Article 2.

The Act applies to public authorities, such as local authorities, the NHS, the police, courts, and publicly funded schools. These public authorities must respect and protect the human rights outlined in the Act. This means that Parliament will usually ensure that new laws are compatible with the rights set out in the ECHR. However, it is important to note that Parliament is sovereign and can pass laws that are incompatible with the ECHR.

The Human Rights Act 1998 allows individuals to take action in UK courts if their human rights have been breached by a public authority. This means that individuals can seek justice in British courts rather than having to go to the European Court of Human Rights in Strasbourg, France.

Public law

The grounds for judicial review in public law typically include illegality, procedural unfairness, and irrationality. For instance, a decision can be overturned if a public authority has acted in a manner that violates the human rights enshrined in the Human Rights Act 1998. However, if the public authority is simply following instructions from parliament, its decision cannot be declared unlawful, even if it conflicts with those rights.

The purpose of public law is to prevent the abuse of power and ensure that government power is exercised with the proper checks and balances in place. It provides a mechanism for individuals or organisations affected by the actions or inactions of public bodies to seek judicial remedies. This may involve challenging the lawfulness of policies or decisions made by the executive branch of the government.

While public law allows for the review of government decisions, it is important to note that it does not empower the courts to overturn primary legislation passed by parliament. This restriction stems from the principle of parliamentary sovereignty in the UK constitution. However, the courts can overturn secondary legislation created by ministers through judicial review.

Constitutional law

In constitutional law, constitutionality is the condition of acting in accordance with an applicable constitution. The status of a law, procedure, or act's accordance with the laws set forth in the applicable constitution is determined. When laws, procedures, or acts directly violate the constitution, they are deemed unconstitutional. An act or statute enacted as law by a national or subordinate-level legislature may be declared unconstitutional.

In the United States, for example, there are several instances of state laws being held as unconstitutional. A notable example is a Texas act from 1914 that stipulated that only those who had previously served as freight train conductors or brakemen for two years could serve as railroad train conductors. This was deemed arbitrary and a denial of equal protection of the laws.

In the United Kingdom, while there is no codified constitution, judicial review is a type of court case where someone (the "claimant") can challenge the lawfulness of a government decision. If the claimant wins, the government's decision can be declared unlawful or quashed. However, it is important to note that the courts cannot overturn or quash primary legislation passed by parliament due to parliamentary sovereignty.

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