Judicial Review Flashcards

1
Q

what happened in 2017?

A

in January 2017, the Supreme Court upheld its decision that Parliament’s consent is required before the Brexit process can begin

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2
Q

what is one of the key constitutional changes that has taken place since WW2?

A

One of the key constitutional changes that has taken place in the UK since the end of WW2 is the growth in the political significance of the judiciary due to the increasingly vigourous use of the powers of judicial review

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3
Q

what has the increased use of judicial review raised questions about?

A

this has raised the question of whether judicial review risks trespassing on the democratic functions of the executive and the legislature

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4
Q

what has thrown the debate about judicial review into the limelight again?

A

The whole debate was thrown into the limelight with the passage of the Criminal Justice and Courts Act of 2015, which Sadiq Khan described as “an unconstitutional attack on the rights of the British people”

The controversy has been ramped up further with a decision by the High Court in 2016, following a case brought by People’s Challenge, that ruled against Theresa May and the government by stating that the government cannot trigger Article 50 without the backing of Parliament

in the judgement, the Lord Chief Justice, Lord Thomas wrote “the most fundamental rule of the UK constitution is that Parliament is sovereign” and that the court did not support the argument of the government that it could use prerogative powers to trigger Article 50 without first going through Parliament

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5
Q

what was the response to the High Court 2016 ruling?

A

UKIP MP Douglas Carswell described the decision as “shocking judicial activism” and added that these “judges are politicians without accountability”

The government appealed the decision, but in January 2017 the Supreme Court ruled that the government cannot trigger Article 50 without an act of parliament authorising it to do so

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6
Q

what is judicial review?

A

judicial review is a form of court proceedings, in which a judge reviews the lawfulness of a decision or action, or the failure to act, by a public body

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7
Q

what is judicial review a critical tool for?

A

judicial review is a critical tool that allows ordinary people to challenge decisions made by public bodies because the decision was unlawful, irrational or made in the wrong way

it also acts as a vital check on power, providing a route to justice to people when public bodies operate outside the law

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8
Q

why has judicial review grown in importance?

A

judicial review has grown in importance since the passage of the human rights act in 2000

now judicial review is seen as essential to protecting civil liberties, The rule of law and establishing the legal limits on the power of the executive

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9
Q

what type of bodies are subject to judicial review?

A

Decisions made by public bodies in a public law capacity (such as government ministers and departments, local authorities and NHS trusts, chief constables and prison governors, maintained schools and school governing bodies) can be subject to judicial review

if a private company is carrying out a public function, such as a private company running a prison, its actions are governed by public law and can be reviewed

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10
Q

what are the key grounds for judicial review that have had a political impact?

A

exceeding powers

failure to follow the correct procedures

abuse of civil liberties

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13
Q

what are the key grounds for judicial review that have had a political impact?

EXCEEDING POWERS

A

any action or decision may be unlawful with the body making the decision had no power to make it, exceeded the powers given to it under law or misapplied the law

in 2013, the Save Lewisham hospital Campaign took Jeremy Hunt, the secretary of state for health, to judicial review over his decision to implement cuts at the hospital in the maternity and emergency departments

Jeremy Hunt’s decision was quashed as he had acted outside his legal powers and in breach of the National Health Service Act 2006

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14
Q

why is judicial review so controversial?

A

former Conservative leader and Home Secretary Lord Howard has expressed concern about unelected and unaccountable judges entering the realm of political decision-making

this concern is further backed up by the Supreme Court Justice, Lord Sumption, who has warned that judicial review risks trespassing on the proper democratic function of government and the legislature

this was strongly taken up by David Cameron and his Justice Secretary Chris Grayling during the passing of the Criminal Justice and Courts Act in 2015, which aimed to limit judicial review

both argued strongly that judicial review was hindering the ability of a democratically elected government to get things done

Theresa May and the government clearly feel that this has been the case in terms of Article 50

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15
Q

what are the objections that have been raised about judicial review?

RISE IN JUDICIAL REVIEW

A

there has been a huge surge in the number of judicial review cases in recent years, many of which are ill-founded and weak, taking up judicial time and costing money

these cases are adding delays and costs to public services and stifling innovation and much-needed reform

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16
Q

what are the objections that have been raised about judicial review?

LIMITS THE EFFECTIVENESS OF THE EXECUTIVE

A

judicial review has limited the ability of the executive to get things done, as we have seen in the ruling on triggering Article 50

judicial review has a negative impact on decision-makers as they are too concerned about minimising or eliminating the risk of a legal challenge

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17
Q

what are the objections that have been raised about judicial review?

LEFT-WING CAMPAIGNERS

A

Chris Grayling argued in an article in the Daily Mail that the system had become a promotional tool for countless left-wing campaigners

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18
Q

what are the objections that have been raised about judicial review?

JUDGES ARE UNACCOUNTABLE

A

judges are not politicians and so are not accountable, yet they are making judgements which have wide social and political implications

in the wake of the Article 50 decision, David Davis, angered by the decision, tweeted “unelected judges calling the shots… power to the people”

19
Q

what is the defence of judicial review?

CHECK ON EXECUTIVE POWER

A

The attacks on judicial review have led to an equally strong response from those who defend its role as a key defence against the power of the executive

speaking in the debate in the House of Lords, Lord Deben, former Conservative minister John Gummer, stated that “it is unacceptable if we have a system whereby if the government has acted illegally it cannot be brought to account in the courts”

from his perspective “the British defence of freedom is judicial review”

20
Q

what are the counter arguments to the points raised by David Cameron and Chris Grayling?

NUMBER OF JUDICIAL REVIEWS

A

The number of judicial review cases per year has massively increased from 4240 in 2000 to around 15,600 in 2013

however, most of these are asylum and immigration cases, with the number of civil judicial review cases only rising from 1730 to 2190 in the same period

21
Q

what are the counter arguments to the points raised by David Cameron and Chris Grayling?

IMPROVEMENTS TO PUBLIC BODIES

A

LSE found that judicial review does impose costs on public bodies, but this has to be balanced against improvements in the quality of public administration and the fact that it helps public bodies to meet their legal obligations

22
Q

what are the counter arguments to the points raised by David Cameron and Chris Grayling?

THE THREAT OF JUDICIAL REVIEW CAN BE POSITIVE

A

The threat of judicial review to public bodies may be a positive not a negative influence

such a threat led to the transport secretary Patrick McLoughlin reversing the government decision to award the West Coast mainline rail franchise to First Group in 2012, admitting to ”significant errors” in a “flawed process” for awarding the contract

23
Q

what are the counter arguments to the points raised by David Cameron and Chris Grayling?

INTEREST GROUPS / LEFT-WING CAMPAIGNERS

A

LSE found that only 3% of judicial review cases were brought by interest groups between 2010 and 2012

an example of a recent case is the one brought by Asbestos Victims Support Groups Forum UK in 2014 against the Ministry of Justice, when it was ruled that the decision by the UK government to take substantial sums from cancer sufferers’ damages, saving the insurance industry millions of pounds, was unlawful

24
Q

what does the anger of current and previous governments towards judicial review reflect?

A

The anger of the current and previous government towards judicial review reflects the fact that it is working to hold the executive to account

this has more importance as there is a widespread perception that Parliament is no longer capable of holding executive to account

this leaves the judiciary and judicial review as the most effective means of scrutinising the legality of the government’s decision-making process to prevent abuse of power by the state

25
Q

how does the Constitution link to judicial review?

A

in light of the uncodified and partially unwritten nature of the UK constitution, it is clear that the system only works if the three branches of government show each other appropriate respect

this involves the other branches accepting that the judiciary plays the role of ensuring government according to the law

judicial review is not about politics but is limited to lawfulness of government action

courts are not above the elected government but are there to ensure that the law is above the government

26
Q

the Criminal Justice and Courts Act 2015

A

The Act was passed in 2015 and faced significant opposition and the government had to amend the final bill considerably

The key provisions of the bill arguably have the potential to undermine judicial review by deterring applicants from pursuing claims and deterring third parties (such as charities) from intervening in cases

this is down to the increased risks of having to pay higher costs and the courts’ ability to reward relief or remedy is now reduced

27
Q

what are the key grounds for judicial review that have had a political impact?

ABUSE OF CIVIL LIBERTIES

A

A decision can be reviewed if it is an abuse of civil liberties in that it contravenes the Human Rights Act

The most famous of these is A and others v Secretary of State for Home Department in 2004, which found that anti-terror laws contradicted the Human Rights Act on the grounds that citizens have a right not to be detained without trial

this decision led to Parliament passing the Prevention of Terrorism Act in 2005, which introduced control orders

28
Q

what are the key grounds for judicial review that have had a political impact?

FAILURE TO FOLLOW PROCEDURES

A

if there are clear procedures laid down by the law that a public body must follow to reach a decision, it can be challenged for failure to follow them

in 2013, the court ruled in favour of the government consultations on the building of HS2 — The government won on nine points

but the High Court ruled against the government over the nature of the consultation into compensation of householders living along the proposed route, saying “the consultation on compensation was so unfair as to be unlawful”