justiciability Flashcards
What is Justiciability?
Legal questions court can answer
ability to be decided in court
Grounds of Judicial Review
- illegality
- Irrationality
- procedural Impropriety
Illegality
where authority has made an error of law
eg: exercising a power that it does not possess
irrationality
- where exercises power so unreasonable that it is open to review based on wednesbury principles
procedural impropriety
WHERE law has acted in contrary to principles of natural justice
AXA General Insurance Ltd v The Lord Advocate [2011] UKSC 46 Lord Reed [142]
- The courts therefore
have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits. - The extent of the courts’ responsibility depends
upon the particular circumstances, including the nature of the public authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the authority have limits or purposes whichthe courts can identify and adjudicate upon. - The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law.
AXA General Insurance Ltd v The Lord Advocate [2011] UKSC 46
at 51
certain legislation, such as that which seeks ‘to abolish judicial review or diminish the role of the courts in protecting … the individual … is not law which the courts will recognise’
What was the Miller v prime Minister [2019] UKSC 41 about?
- Facts:
The issues appealed from Miller were principally focused on whether the government could use the royal prerogative to give notice of the United Kingdom’s intention to leave the European Union under Art. 50 of the Treaty of the European Union (TEU), or whether parliamentary authorization via primary legislation was required.
Re McCord also asked whether such legislation could be passed only if the consent of the devolved nations had been given, in line with the Sewel Convention.
Sewel convention: s28 of the Scotland Act 1998 at the end add— “(8)But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” but did not need to require consent of scottish parliament for miller - unanimous decision by judges
Decision:
By a majority of 8:3, the Court ruled that primary legislation was required to authorize the government to give notice under Art. 50 TEU. While the majority, led by Lord Neuberger, agreed that the prerogative treaty-making powers were ‘best reserved to ministers’ and were ‘essential to the operation of the state’ (at [49]), it also reconfirmed that an exercise of this power could not alter the domestic law until such time as Parliament passed primary legislation to give effect to the treaty in question (at [57]).
because its function was only ever as a ‘conduit’ to bring non-domestic law into the United Kingdom and not as an independent source of domestic law in its own right, the use of the prerogative to make a notification under Art. 50 TEU would not result in a change to these domestic rights; it would simply mean no one could meet the conditions necessary to claim them. Thus, the government could use the prerogative power to issue the notice (at [194]).
On the devolution point, the Court concluded that the Sewel Convention was only a ‘political restriction on the activity of the UK Parliament’ (at [145]; see also [150–151]). The consent of the devolved nations was not required to pass the necessary legislation at Westminster.
Miller 2019 facts
- While the majority, led by Lord Neuberger, agreed that the prerogative treaty-making powers were ‘best reserved to ministers’ and were ‘essential to the operation of the state’ (at [49]), it also reconfirmed that an exercise of this power could not alter the domestic law until such time as Parliament passed primary legislation to give effect to the treaty in question (at [57]).
- the use of the prerogative to make a notification under Art. 50 TEU would not result in a change to these domestic rights; it would simply mean no one could meet the conditions necessary to claim them. Thus, the government could use the prerogative power to issue the notice (at [194])
what is justiciable?
- financial policy
- socio-ethical concerns
- prerogative
- national security
- treaty making
- foreign affairs
What was Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 about?
Facts:
Margaret Thatcher, holding the office of Minister for the Civil Service, decided that employees of the British Intelligence Agency (GCHQ) would not be permitted to join trade unions on the grounds of national security
Thatcher relied on the royal prerogative power to regulate the terms of service, issuing the new rule through an Order in Council
CCSU applied for judicial review of the decision
Decisions:
In the Court of Appeal, the appeal was dismissed on the grounds that it would be inappropriate for the courts to intervene on matters of national security
TAppeal dismissed; while the decision was justiciable, it was reasonable to prevent British Intelligence employees from joining trade unions in the interests of national security
The importance of the case is found in the departure from the unwillingness of the courts to judicially review prerogative powers.
Lord Diplock found that where a person’s ‘private rights or legitimate expectations’ are effected by the execution of the prerogative power, then that execution of power should be amenable to review.
Lord Fraser and Lord Brightman came to the same conclusion based on the view that where the prerogative power was delegated from the monarch, the exercise of that power could be reviewed via judicial review.
Lord Roskil: I am unable to see, subject to what I shall say later, that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.”
Justiciability of prerogative - Lord diplock
- Lord Diplock found that where a person’s ‘private rights or legitimate expectations’ are effected by the execution of the prerogative power, then that execution of power should be amenable to review.
Lord Fraser and Lord Brightman came to the same conclusion based on the view that where the prerogative power was delegated from the monarch, the exercise of that power could be reviewed via judicial review.
To qualify as a subject for judicial review, a decision must affect a person either by:
1. altering rights or obligations which are enforceable for or against him in private law; or
2. depriving him of a benefit or advantage which he had i) previously had or ii) legitimately expected to have: p. 408
There is no reason why because a decision-making (prerogative) power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review: p. 410
Justiciability - lord roskill
‘Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process’:
what qualifies soemthing for judicial review?
- public authority
decision must affect person by:
1. altering rights or obligations which are enforceable for or against him in private law; or
2. depriving him of a benefit or advantage which he had i) previously had or ii) legitimately expected to have: p. 408
abassi v SOS 2002
- executive decisions concerning international relations were non-justiciable as a matter of domestic and international law
- However, the Court thought that well-established aspects of judicial review—legitimate expectation and review of the prerogative—were potentially applicable (at [81] et seq).
