Judicial Review Flashcards
What is judicial review:
It allows an individual to directly challenge at least some of the decision making power of the state.
The judiciary have a supervisory role to oversee the conduct of public authorities -ensuring they act within the prescribed limits of powers conferred to them by law.
Can judicial review challenge public authorities decision ?
No, it challenges the process of how the decision was made (through the legality of the process and powers given) not the decision itself
What is political and legal constitutionalism?
Political: Parliament elected by the people and highest body in the land which can’t be challenged by the courts, as they do not have the constitutional power to question legislation but only interpret and apply legislation giving intention of Parliament and development of common law. They can’t set aside statute if they find it incompatible-they have to allow parliament to do so.
Legal: courts have the legitimacy to review public authorities actions are underpinned by the rule of law to safeguard and enforce individuals liberties and rights if they have been restricted by public authorities. As such, they see the rule of law as highest norm/principle in the constitution.
In what way have the courts the power to review?
Through the principle of the rule of law, the courts have the power to challenge and review the legitimacy of the exercise of govt power.
Parliamentary sovereignty is also restrained by constitutional statutes that cannot be impliedly repealed or are more significant than domestic law
Eg European communities act 1972 and the human rights act could declare that domestic legislation was incompatible with the UK’S obligation to the EU or ECHR.
Whet are the 5 current constitutional bases for judicial review?
- Ordinary domestic law provisions (rights from domestic statutes)
- fundamental constitutional rights recognised in common law
- Directly effective EU right
- ECHR right incorporated into Human Right Act 1998
- Devolution related issue.
What rights are reviewed for ordinary domestic law?
The rights are reviewed from stature or prerogative power. The review will determine the source of power and the extent of the authorities power and whether it was exceeded.
Comes from historical context
Courts gradually began to draw a distinction between executive acts done without proper basis or authority, which might be collaterally challenged in an action for trespass against the executive officer
Entick v Carrington 1765
erroneous executive acts which could not be ordinarily challenged in this way. Groenvelt vBurrell 1700 (court had no jurisdiction as parliament had wide discretion
What is the ultra vires doctrine?
Permits the court to strike down a decision made by a public authority who acted outside of their powers
Elliot (1999) accepts that part of the common law theory acknowledges that judges create principles of good administration independent of the legislative intent. Yet, Elliot also maintains that those principles should be applied consistently with the general legislative principle, implied in s1 Constitutional Reform Act 2005 (but not defined), that all power should be exercised in accordance with the rule of law. To put it another way, any legislative ambiguity or silence is to be read in a way that assumes the legislature’s consent to be bound by the rule of law as interpreted in the circumstances of the case under review.
What case extends the ultra vires doctrine to justify challenging of public authorities decisions rather than whether they acted within the scope of their duties (substance) this was based on the implied intention that any act of parliament would want a decision that was reasonable
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948]
Wednesbury corporation set out that children under 15 were not allowed to go to the cinema in a Sunday. The cinema, facing financial loss challenged whether the condition was unlawful.
Set out three grounds for which the court may find an executive action was ultra vires
1-illegality
2-irrational ( particularly discretionary powers-if content is so bizarre that no reasonable person would assume parliament intended it, then it is irrational)
3-procedural impropriety- has the correct procedure been followed?
What case is linked to illegality?
Attorney General v Fulham Corporation 1921
Corp had statutory obligation to provide wash houses for poor but wanted to open a commercial laundry-found as ultra vires to the original power given.
What case is linked to irrationality?
Associated provincial picture houses ltd v wednesbury corporation 1948
Lord greene mr ‘it is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the courts can interfere’.
What case is linked to procedural impropriety?
Vale of Glamorgan borough council v Palmer and Bowles 1983
Council had to issue tree preservation orders which required a plan identifying the trees- no plan made. Therefore order was invalid
Natural justice and bias and right to a fair hearing cases?
Decisions must have principles of fairness
Bias
Porter v Magill 2002
Conservative council adopted targeted council house policy to gain more votes.
Right to a fair hearing?
Ridge v Baldwin 1964
Constable was dismissed without a hearing or being allowed to present his case.
What are common law fundamental rights as a judicial basis of review?
Common law principles that enshrine the rule of law
Dr Bonhams case 1610
No person can be judge in their own case-needs impartiality of the judge
