Development of Judicial Review

Question 1

What does Forsyth believe about Judicial Review?

Answer 1

• That Judicial Review is based on Parliamentary Supremacy. This is the ultra vires approach
• Parliament expressly states the level of power which is its intention. Anything which goes beyond this level of power goes beyond what Parliament intended.
• The judiciary ensures that public bodies act within the powers transferred to them by Parliament

Question 2

What do Craig, Oliver and Jowell say?

Answer 2

• Judicial review is judge-made so it is unrealistic to say that they have been driven by Parliament’s intentions.
• Parliament did not foresee the way in which the courts would interpret the grounds of judicial review
• Ultra vires has been tarnished by the ‘elected dictatorship’ argument - Parliament does not respect the interests of unpopular minorities such as asylum seekers and terrorist suspects

Question 3

How does Forsyth rebut Craig, Oliver and Jowell?

Answer 3

• He accepts that they are judge-made rules, but that they are not made in a vacuum
• The fact that Parliament has not overturned any of the decisions in the area of judicial review gives the courts implicit consent

Question 4

What are the 3 Grounds of Judicial Review and where do they come from?

Answer 4

• Lord Diplock in the GCHQ case:
  1. Illegality
  2. Irrationality
  3. Procedural Impropriety

Question 5

3 Cases which highlighted the development of Judicial Review?

Answer 5

• Ridge v Baldwin [1964]
• Padfield [1968] - the minister cannot fetter discretion
• Anisminic [1969] - Judicial Review can only be excluded by the clearest of words. The FCC did not try to overstep their boundaries but there was an error in law in the way in which its decision was made.

Question 6

Why is judicial review in the UK seen as limited compared to other countries?

Answer 6

• UK Courts cannot strike down legislation in the same way the US Supreme Court or other Supreme Courts can
• UK judicial review is concerned with the legality of executive action

Question 7

Which case can be said to underpin modern judicial review?

Answer 7

• Entick v Carrington [1765]

- Government and other public authorities must have legal authority for their actions

Question 8

Which case from 1942 was incredibly controversial and why?

Answer 8

• Liversidge v Anderson [1942]
• The court interpreted the words of the delegated legislation to allow the detention of the defendant without trial
• Lord Atkin dissented, viewing this as contrary to the Rule of Law and principles of judicial review

Question 9

What is Harlow and Rawlings Red Light approach to Judicial Review?

Answer 9

• ‘Red Light’ approach - the law on judicial review is there to control and limit the actions of government
• This is a legal constitutionalist view

Question 10

What is Harlow and Rawlings Green Light approach to Judicial Review?

Answer 10

• ‘Green Light’ Approach - the courts should enable government to use its powers for the public good
• The political constitutionalist view

Question 11

What is the first of the 3 important 1960s cases on judicial review and what did it say?

Answer 11

• Ridge v Baldwin [1964]
• Enabled principles of natural justice to be applied to a wide range of government decisions, not just those judicial in nature

Question 12

What is the second of the 3 important 1960s cases on judicial review and what did it say?

Answer 12

• Padfield [1968]
• Ministers are never given unfettered discretion by legislation. They should always use the discretion given to them to further the policy objectives of the act

Question 13

What is the third of the 3 important 1960s cases on judicial review and what did it say?

Answer 13

• Anisminic [1969]
• Parliament could only oust the jurisdiction of the courts to review decisions of public bodies through judicial review using the clearest of words

Question 14

What was found in Leech?

Answer 14

• Leech [1994]
• A prisoner’s right to communicate with his lawyer was a constitutional right.
• Furthered the trend of courts basing their reasoning on individual democratic rights

Question 15

What does John Laws say about Judicial Review?

Answer 15

• It is a categorically legal creation

- The link to Parliament is a fig leaf covering the true origin of judicial review - the courts

Question 16

What does Forsyth say about Laws’ Fig Leaf?

Answer 16

-He has got the metaphor wrong, a fig leaf does not deceive anyone as to what lies beneath, namely his ultra vires rule

Question 17

Why was Datafin [1987] an Important Case?

Answer 17

• Datafin [1987]
• If a body is to be considered in judicial review but does not have a statutory or prerogative basis, it will be asked whether the body has a ‘public element’ which can take many different forms

Question 18

What must be found in order to obtain permission to seek judicial review?

Answer 18

• A sufficient interest in the matter on the part of the party applying
• This is often straightforward if the party has been directly affected but cases may be brought by campaigning environmental organisations

Question 19

What did the IRC Case find?

Answer 19

• IRC [1982]
• Lord Diplock thought that standing should be a preliminary threshold to dismiss simple cases, and that once permission was granted, the courts should concern themselves exclusively with the substance and quality of the arguments

Question 20

What is the WDM (Pergau Dam) [1995] Case an example of?

Answer 20

• A pressure group using the judicial review process to achieve political ends
• There was sufficient standing in this case