Evans v AG Flashcards
what lies at the the heart
a question about a network of constitutional relationships between the monarchy and the executive, constitutional convention and constitutional law and the constitutional courts
why did the departments decline
PI gorunds
Tribunal upheld
why did the AG use s53
because they felt that the disclosure might undermine
public confidence in his capabilities as king
what is the central question
to what extent is it legally and constitutionally legitimate for a court exercising powers of judicial review to strike down a gov minister decision made under powers granted by parliament
the view point from the rule of law
guards judicial role as arbiter of legal disputes, therefore is not willing to allow the executive overide of judicial authority. also is not keen on judicial interference with clear legal provisions
view of seperation of powers
need to have respect for the parliaments legislative entitlement to allocate authority that arise pursuant to statutory schemes.
Lord neuberger
relies heavily on the constitutional law principles to aid the interpretation
held that the power could only be exercised in 2 highly limited circumstances. in the event of a material change in circumstances since the tribunals decision and th eit was demonstrably wrong in law or fact.
an opinion based on otherwise reasonable grounds will not satisfy the legislation.
LM said it should have a wider influence.
lord mance
recognizes separation of powers and rule of law, but takes a more administrative law stand point
looked at did the AG have reasonable grounds, so looked at the standard of review.
wednesbury reasonableness was very subjective, depends on a process of statutory construction.
came to the conclusion that the grounds of reasonableness in the statute were more demanding than the standard public law requirement of wednesbury
lord mance continued
he drew a distinction between the executive override on a) findings of fact or law b) the ascription of weight to and the subsequent weighting of competing public interests
regarded the upper tribunal as an expert so was hesitant to apply the fact or law. set the bar very high, could be arguably reasonable but would not be sufficient.
ministers could weigh the PI, but would need to be explained in reference to solid reasons.
Lord wilson
whether the grounds which formed the AG’s opinion were reasonable
Lord Hugher
required to act rationally
where does the scope of disagreement come from
not decisively answered in the statute.
can project their own view point on to whether a) the legislature should be taken to have executive override over a judicial body
b) the executive should be free to determine for it self when it is reasonable to exercise the override power
c) reviewing court should exercise vigilance when examining the reasons offered as justifications for the exercise of power.
difference between lord Mance and lord Neuberger
utilised admin law instruments in order to narrow the override power, lord neuberger got rid of it.
lord Neuberger did not have much regard for the text, he had more of an emphasis on the seperation of powers and the rule of law. said an executive overide power would have been a full frontal assault on the principles.
the legislation did not permit a member of the executive to override an upper tribunal decision whenever he or she took a different view
difference in the relative weight to be ascribed to
a) judicial deference by a reviewing court to the executive decision making
b) executive respect for and compliance with decisions of independent judicial bodies.
who did evans says it should be interpreted
the effect of the certificate would be to override the decision of the upper tribunal, and that power to overrule should be interpreted restrictively.
not compatible with article 47 of the EIR.
