Introduction & Judicial Review in the UK

Question 1

What are some familiar cases that can be used regarding Administrative Law? (from previous 4 modules)

Answer 1

• Miller v Secretary of State: declared unlawful for UK Government to use prerogative powers to leave EU without legal authorisation
• Miller v Prime Minister: PM wanting to prorogue Parliament without a good reason

Question 2

What main definition can be drawn regarding the idea and the purposes of administrative law?

Answer 2

Body of law regulating and controlling governmental power within a constitutional system

Question 3

Why is administrative law significant?

Answer 3

• The rise of the modern state (increased size and role)
• Discretion (decision-making in day-to-day administration)
• The dangers of discretion and the protection of rights and liberties of citizens against the state (“wide, arbitrary or discretionary powers”)

Question 4

Provide some examples of broad discretionary powers.

Answer 4

• Metropolis Management Act 1885
• Ss73, 74 housing Act 1936 (case: White and Collins. Minister of Health)
• Regulation 18B Defence (General) Regulations 1939

Question 5

What are the different kinds of accountability?

Answer 5

• Legal [administrative law] [judicial review, legislation, etc.]
• Political [Question Time, PMQs]
• Public [elections, public inquires]

Question 6

What is the importance of accountability?

Answer 6

• “Safeguards against bad government and bad governance” (Oliver)
• Promoting open, effective government
• Relevant to values of the rule of law
• Democracy and participation

Question 7

With the UK being a political constitution, what does this mean?

Answer 7

• Most effective way of limiting power (“attempting to not restrict legal powers of government that we shall defeat authoritarianism”, Griffith)
• Most appropriate way to balance political + legal accountability [more democratic places important decisions into hands of those accountable to the public]

Question 8

How do you define ‘Judicial Review’ in simple terms?

Answer 8

When higher courts check if government decisions or actions follow the law. If they find something unfair, illegal, or done incorrectly, they can fix the problem.

Question 9

What is the significance of “Supervisory Jurisdiction”?

Answer 9

• Courts are limited to assessing the lawfulness of decisions undertaken by the Government (cannot get involved in the substance of executive decisions)
• Courts do not substitute their own view of the “correct outcome”

Question 10

Where does judicial review operate?

Answer 10

• Review of executive/administrative action [enforcement of statute + prerogative powers]
• Devolution [supervision of devolved powers]
• NONE for primary legislation [like Acts of Parliament due to there being absence of a codified constitution]

Question 11

How can Parliamentary sovereignty be defined?

Answer 11

Ensuring the will of Parliament is followed (relating to ultra vires)

Question 12

How can the Separation of Powers doctrine be defined?

Answer 12

• Check and balances on the exercise of government power
• Ensuring government does not interfere with Parliament’s legislative powers
• Explanation for the limited supervisory jurisdiction of the court

Question 13

How can the ultra vires theory be used to answer the question on what the Constitutional Basis of Judicial Review is in the UK?

Answer 13

• Places emphasis on Parliamentary Sovereignty as the foundational principle of UK system
• JR justified on basis that courts give effect to the intention of Parliament

Question 14

What is the difference between the direct and implied intentions of Parliament?

Answer 14

• Direct: outside the terms of the statute (e.g., simple illegality)
• Implied: Parliament legislates intending that principles of natural justice and fairness are followed

Question 15

How is the common law theory a challenge to the ultra vires theory?

Answer 15

• Claims principles of jR are not and do not need to be based in legislative intention
• JR are judicial creations + grounded in the common law

Question 16

What are outser clauses?

Answer 16

A section of an Act which seeks to restrict or exclude the power of legal review
(Example: Foreign Compensation Act 1950)

Question 17

What can we learn from ouster clauses in the case of Anisminic Ltd v Foreign Compensation Commission [1969]?

Answer 17

• Facts: JR against FCC decision to refuse compensation on basis that it had misdirected itself in the law - “jurisdictional” error
• Held: Despite OC, courts would be able to review decision on this basis

Question 18

What is the logic followed in the Anisminic case?

Answer 18

• The clauses should be interpreted narrowly and strictly
• Invalid determinations are not determinations at all

Question 19

What can we learn from ouster clauses in the case of R v Secretary of State for the Home Department?

Answer 19

• The decision breached natural justice - OC read in a limited way + review upheld
• “Any other error which would justify the intervention of the court on JR”