Constitutional Basis and Grounds Flashcards
What is the ultra vires theory
Judicial Review is about the courts discovering the will of Parliament through statutory interpretation and policing the actions of public bodies to be within the powers granted to them by Parliament.
Explain some challenges towards the ultra vires theory
It does not account for how the courts make law in their interpretative role, not just the Parliament, too reductionist of a view
How do ultra vires theorists respond to the challenges?
Courts are entitled to imply, the will of Parliament is not one set thing, it is susceptible to interpretation.
Courts will apply established standards in common law to assume certain things to be there even when Parliament is not express about them
Courts are allowed to imply into the words that the will of Parliament was for decisions to be procedurally fair and rational.
What is the common law theory on the constitutional basis of JR?
Judicial review is understood as a product of the common law principle that decision makers should act fairly, rationally etc
Not about intention of Parliament
What are some challenges of the common law theory?
That it assumes that Parliament’s authorises public bodies and ministers to act unreasonably, unfairly etc
What is the thinner version of the ultra vires theory
Parliament intends that the powers it creates should be exceescised in accordance with the Rule of Law
What is common law constitutionalism ?
Common law theory that displaces parliamentary sovereignty completely as the constitutional basis of Judicial Review
What is the (thin) version of common law constitutionalism
If parliamentary words are ambiguous courts will assume an interpretation that upholds human rights principles
What is the thickness version of common law constitutionalism?
In exceptional circumstances the courts may set aside Acts of Paliament to uphold the Rule of Law
