Judicial Review Flashcards
what happened in 2017?
in January 2017, the Supreme Court upheld its decision that Parliament’s consent is required before the Brexit process can begin
what is one of the key constitutional changes that has taken place since WW2?
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
what has the increased use of judicial review raised questions about?
this has raised the question of whether judicial review risks trespassing on the democratic functions of the executive and the legislature
what has thrown the debate about judicial review into the limelight again?
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
what was the response to the High Court 2016 ruling?
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
what is judicial review?
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
what is judicial review a critical tool for?
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
why has judicial review grown in importance?
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
what type of bodies are subject to judicial review?
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
what are the key grounds for judicial review that have had a political impact?
exceeding powers
failure to follow the correct procedures
abuse of civil liberties
what are the key grounds for judicial review that have had a political impact?
EXCEEDING POWERS
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
why is judicial review so controversial?
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
what are the objections that have been raised about judicial review?
RISE IN JUDICIAL REVIEW
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
what are the objections that have been raised about judicial review?
LIMITS THE EFFECTIVENESS OF THE EXECUTIVE
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
what are the objections that have been raised about judicial review?
LEFT-WING CAMPAIGNERS
Chris Grayling argued in an article in the Daily Mail that the system had become a promotional tool for countless left-wing campaigners
