Key Aims and Theories of JR

Question 1

What is Judicial Review?

Answer 1

A form of Administrative Law that seeks to promote good administration by enabling private individuals to challenge or call into question the legality of the actions of public bodies.

Question 2

What is the overarching primary function of judicial review?

Answer 2

To promote ‘good administration’.

Question 3

What are the three key theoretical understandings of the functions of judicial review?

Answer 3

1. Red Light Theory
2. Green Light Theory
3. Amber Light Theory

Question 4

What is the red light theory?

Answer 4

This theory suggests the primary function of judicial review is to keep the powers of government within their legal bounds so as to protect the citizen against their abuse. Judicial Review is a control on the government.

Question 5

What is the green light theory?

Answer 5

This theory suggest the role of administrative law is not act as a brake on the interventionist state, but rather to facilitate legitimate government action towards the public interest. Judicial Review is a facilitating mechanism and good practice template.

Question 6

What is the amber light theory?

Answer 6

This theory suggests administrative law should encompass both the ‘fire-fighting’ and ‘fire-watching’ functions. It is something of a middle ground with courts, through Judicial Review, righting wrongs and maintaining high standards of administration.

Question 7

What are four differing perspectives on the purpose of judicial review?

Answer 7

1. A practical means of enforcing the Rule of Law - Jowell
2. A means of securing the improvement of public administration
3. A means of securing the accountability of public bodies to users/the electorate
4. A means of policing the allocation of public power and supervising the way in which it is exercised
   (maybe a combination of all of them)

Question 8

What are the three key theories that seek to explain the constitutional basis of judicial review?

Answer 8

1. Ultra Vires Theory
2. Common Law Theory
3. Modified Ultra Vires Theory

Question 9

What is the Ultra Vires Theory?

Answer 9

This says that judicial review is only justified on the sole basis that courts are giving effect to Parliamentary Intention.

Question 10

What did Baxter say of the Ultra Vires Theory?

Answer 10

‘The self-justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot.’

Question 11

When does the Ultra Vires theory permit courts to intervene and exercise judicial review?

Answer 11

Courts may intervene whenever a decision-maker acts ‘ultra vires’ – that is, beyond the powers conferred on them by legislation. However, administrative acts which are intra vires – within the statutory powers – are lawful and unimpeachable.

Question 12

What is the advantage of the Ultra Vires Theory of judicial review?

Answer 12

Legitimacy - the theory is tied to the constitutional doctrine of parliamentary sovereignty, as it is that doctrine which underpins, according to the theory, the right – and duty – of the courts to review administrative decisions and acts. (Self-justification).

Question 13

What are the disadvantages of the Ultra Vires Theory of judicial review?

Answer 13

1. Unrealistic - does this theory reflect the reality of how judicial review operates, and does it also reflect the only normative ground on which judicial review ought to operate?
2. Vagueness Problem - Constraints on power are not static and therefore cannot be referred back to legislative intent. Does it offer us sufficient guidance as to how judicial review principles should be developed and concretised in a given case by the courts?
3. Incomplete - it cannot explain the court’s approach to ‘exclusion clauses’ – Anisminic v Foreign Compensation Commission

Question 14

What is the Common Law Theory?

Answer 14

This theory says that the principles of judicial review are in reality developed by the courts on grounds of justice, the rule of law, etc.

Question 15

What did Laws say of the Common Law theory of judicial review?

Answer 15

‘[The principles of judicial review] are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig leave to cover their true origins. We do not need the fig leaf any more.’

Question 16

What is the advantage of the Common Law Theory of judicial review?

Answer 16

Perhaps more realistic or reflective or reality - it offers a view more consistent with the operation of the doctrine in practice.

Question 17

What is the disadvantage of the Common Law theory of judicial review?

Answer 17

Vagueness Problem - this theory is arguably no less vague than the Ultra Vires one.

Question 18

How does the Common Law Theory of judicial review fail to resolve the vagueness problem?

Answer 18

Principles of justice and fairness (CLT) are no less vague than constraints on power that affect the ultra vires principle. We do not know how justice, fairness, or the rule of law will be fleshed out and concretised in a given case (CLT), just like we doubt how legislative intent will be applied in a judicial review case (UVT).

Question 19

What is the Modified Ultra Vires Theory?

Answer 19

This theory says that the courts interpret and apply statutes on the assumption that Parliament legislates consistently with a tradition of respect for fundamental constitutional principles. These include the principles of administrative justice reflected in the standards of judicial review.

Question 20

What did Elliott say of the Modified Ultra Vires Theory?

Answer 20

Elliott exemplified the practical application of the theory behind the Modified Ultra Vires Theory saying - ‘…when Parliament legislates to confer wide discretionary power, the courts are constitutionally entitled…to assume that it was Parliament’s intention to legislate in conformity with the rule of law…’

Question 21

What is the advantage of the Modified Ultra Vires Theory?

Answer 21

Realistic - it avoids the implausible argument that Parliament directly intends the various principles of judicial review. It attempts to bridge the gap between respecting parliamentary sovereignty and the reality that many principles of judicial review are judicially created.

Question 22

What are the disadvantages of the Modified Ultra Vires Theory?

Answer 22

Failure to account for explicit disregard of Parliamentary Intent - the doctrine still does not account for the judicial review of non-statutory powers and non-statutory bodies and arguably does not address the bypassing of relatively explicit parliamentary intent in Anisminic.
2. Vagueness Problem - its reliance on the rule of law and other broad principles does not cure the vagueness problem.

Question 23

What is the key question in regards to the theories in regards to the constitutional basis/justification of judicial review?

Answer 23

Is a focus on parliamentary legislative intent necessary to legitimise judicial review? Is it sufficient?

Question 24

On a basic level of comparison how do the three theories on the constitutional justification of judicial review differ?

Answer 24

UV - Principles of JR derived directly from parliamentary intent.
CL - Principles of JR developed by the courts in accordance with CL principles.
MUV - Principles of JR derived directly from constitutional norms.

Question 25

How does judicial review differ from an appeal?

Answer 25

An appeal stems from legislation subjecting the finding of a public body to, reconsideration on the grounds of the decisions merits, by a tribunal, minister, or even court. Judicial Review is narrower than an appeal and does not involve a consideration of the merits of a decision (rather the legality of the process by which it was made) and may be available where legislation doesn’t provide for an appeal.

Question 26

In which case was it established that judicial review concerns itself with the legality and not merit of decisions? (1)

Answer 26

R v Somerset County Council, ex parte Fewings - “…[I]n most cases the judicial review court is not concerned with the merits of the decision under review. ‘

Question 27

What signals the pressure being placed on the traditional distinction between ‘review’ and ‘appeal’?

Answer 27

The speech of Lord Pannick - ‘However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts … it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.’.

Question 28

Which case illustrates a practical application of the judicial review process? (1)

Answer 28

R(Evans) v Attorney General (Black Spider Memo Case)

Question 29

What were the facts of the case?

Answer 29

1. A journalist sought the release of letters Prince Charles wrote to various Government departments (under the FOIA 2000).
2. The Government departments refused and the decision was upheld by the Information Commissioner.
3. The Guardian/Journalist launched an appeal - an Upper Tribunal eventually ordered the disclosure of the letters.
4. The Attorney General under s53(2) of FOIA issued a certificate ‘vetoing’ decision of the Upper Tribunal on the grounds of an overriding public interest.
5. Judicial Review was sought of the Attorney General’s veto.

Question 30

On what grounds was the Attorney General justified/allowed to exercise a power of veto?

Answer 30

According to s.53(2) of the FOIA, a veto could only be exercised when the relevant decision-maker: “[H]as on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with relevant provisions of the Act].”

Question 31

What was the key issue for the Supreme Court to decide in the Evans Case?

Answer 31

The key issue for the Supreme Court to decide was the correct test for ‘reasonable grounds’.

Question 32

What did the Supreme Court have to determine in deciding ‘reasonable grounds’ in the Evans Case?

Answer 32

They had to consider whether the statutory provision entitling a veto (s. 53(2) of the FoIA) allowed a member of the executive (The Attorney General) to overrule a decision of the judiciary (the relevant Upper Tribunal).

Question 33

What did the Supreme Court conclude in determining ‘reasonable grounds’ in the Evans Case?

Answer 33

Supreme Court took a creative approach to legislative interpretation - eventually concluding that the wording of the legislation granting the power of veto to the Attorney General was not sufficiently clear to justify overruling a decision of the judiciary.

Question 34

What judgement did Lord Neuberger (majority) give in the Evans Case?

Answer 34

He said, on behalf of the majority and in accordance with the final judgement - ‘If section 53 is to have the remarkable effect argued for by … the Attorney General, it must be “crystal clear” from the wording of the FOIA 2000, and cannot be justified merely by “general or ambiguous words”. In my view, section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court because he disagrees with it’.

Question 35

How did Lord Neuberger consider the potential impact of the Evans Case on the Rule of Law principle?

Answer 35

He said - ‘A statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he does not agree with it … would cut across two constitutional principles which are also fundamental components of the rule of law…’
&
‘it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions, and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen’

Question 36

What judgement did Lord Wilson (minority) give in the Evans Case?

Answer 36

He gave the dissenting opinion that - ‘the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation [to seek to maintain the supremacy of the decision of the upper tribunal]. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FOIA. It re-wrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.”

Question 37

How does the debate over proper constitutional foundations of judicial review (UV, CL, MUV) affect case law such as the Evans Case?

Answer 37

Arguments surrounding the proper constitutional foundations of judicial review underpin questions concerning the appropriate development of principles of judicial review in the case law which we consider in the course.