Judicual Review & Constitution

Question 1

What is Judicial review?

Answer 1

A mechanism by which courts ensure public bodies act within the powers they have been given and do not exceed nor abuse those powers

Question 2

Constitutional basis for JR

Answer 2

Creation of common law and judges using power they have made themselves to review decisions of the executive

Question 3

Justifications for JR

Answer 3

1. Ultra vires theory
2. Common law theory
3. Modified ultra-vires

Question 4

Ultra vires theory

Answer 4

Concentrated on judges upholding the will of Parliaments

Question 5

Common law theory

Answer 5

Courts role in upholding good and fair administration

Question 6

Modified ultra-vires theory

Answer 6

Assumes it must have been Parliament’s intention for decisions to be made in accordance with the rule of law

Question 7

Main body

Answer 7

1. JR and Parliamentary Supremacy
2. JR and separation of powers
3. JR and the Rule of Law

Question 8

JR & Parliamentary Supremacy

Answer 8

1. Public bodies which carry out administrative functions can only do so under legal powers, which are usually statutory powers conferred by Parliament
2. By keeping public bodies within legal bounds of their powers, courts ensure they act as Parliament intended
   Courts giving effect to the will of Parliament
3. In line with the fact that illegality is a ground for JR

Question 9

Counter arguments to JR & PS

Answer 9

1. Courts revived the rules of natural judges after “Ridge v Baldwin”
2. Courts avoid ouster provisions despite clear Parliamentary intention to insulate decisions from legal challenge
3. CCSU key turning point in controlling exercise of prerogative powers
4. Impact of ECHR - breach of which can create grounds for review

Question 10

JR & Separation of Powers

Answer 10

1. No formal separation, so it’s vital that there are checks on the use and abuse of power by executive
2. However, traditionally courts are supposed to be looking only at the legality of the decision and not its underlying limits
3. There’s areas which courts regard as off limits, such as some prerogative powers
4. JR reinforces separation of powers, but there’s limits to the extent it can check the executive and legislative

Question 11

JR and the Rule of Law

Answer 11

1. Concerned with government according to law, must be proper legal basis for exercise of power
2. If dispute arises, courts provide potential means of redress
3. While discretion is allowed it must be properly practiced “British Oxygen”
4. Common law theory justifying JR holds that courts developed the principles of natural justice as part of common law and replies on rule of law as one of the main justifications
5. Modified ultra vires theory takes Rule of Law into account