Fundamental Concepts and Theories

Question 1

Name four criticisms of judicial review.

Answer 1

1. Turns judges into legislatures
2. Parliament has given the MP power, therefore it is not for the Court to judge their decisions
3. The courts (particularly the Supreme Court) will argue that it is not their job
4. Lord Sumption: The problem comes from the courts and Parliament look at the same problem through different ends of a telescope

Question 2

What are the two main constitutional justifications for judicial review? Develop

Answer 2

1. The ultra vires theory – The government gives powers which the courts have to police.
2. The common law theory – judicial review is routed in the common law. An example of this is found in Jackson v Attorney General (2006), Lord Steyn (para 102), where he states that parliamentary sovereignty is a rule of the common law.
   The ultra vires theory is more common if challenging ministers, but in general the common law theory allows for greater challenges, particularly of legislation.