SAQ Flashcards
What are the main grounds of judicial review in domestic law?
An action must be brought on one or more grounds set out in Council of Civil Service Unions v Minister for the Civil Service
These three possible grounds are:
Illegality (questions if the decision maker acted outside their authority - ultra vires e.g. Corner House Research)
Irrationality (also described as unreasonableness, if a reasonable authority could have come to the decision then it is reasonable e.g. Wednesbury)
Procedural impropriety (basic question of whether the correct procedure has been followed e.g. Padfield)
What are constitutional conventions?
An informal and uncodified procedural agreement that is followed by institutions of a state - basically a historical convention which determine what happened s
Conventions are not enforceable by the courts but are generally followed due to policy considerations
An example is the vote of confidence in the House of Commons - the government will resign by convention if it loses a vote of no confidence. This is not written down anywhere in statute - it is purely a convention
Even though they are not legally bound, those who they are directed at regard themselves as bound
Give three examples of the ways in which the UK constitution does or does not reflect the principle of the separation of powers.
Principle of SoP: to prevent against arbitrary power and protect individual rights
Does: Constitutional reform Act - LC has been replaced by Lord Speaker in the Commons, replaced as head of the judiciary as Lord Chief Justice and Judicial Appointments Commission appoints judges, remains in cabinet - no longer in all 3 organs of the state
Does: courts hold the executive to account - ex parte Anderson (it was for the courts to decide mandatory life sentences, not the home secretary)
Does not: ministers of the cabinet are also members of parliament - House of Commons Disqualification Act 1975 - no more than 95 holders of ministerial office can also sit in HoC (but still 95!!)
What is meant by individual and collective ministerial responsibility?
Individual ministerial responsibility - ministers are responsible for the actions and outcomes of their department - will resign by convention (Crichel down affair - minister of agriculture had to resign) - however not always the case - Michael Howard
Collective ministerial responsibility - all ministers will publicly support a decision - allows the government to put on a united front otherwise will resign (NHS Charges - 3 ministers including future PM Harold Wilson resigned when labour government created charges for NHS in 1951)
Because they are conventions are not enforceable by the courts but those they are directed at consider themselves bound (e.g. would be uproar if queen decided to no longer grant royal assent)
Briefly describe how the doctrines of individual and collective ministerial responsibility are enforced.
Individual ministerial responsibility - ministers are responsible for the actions and outcomes of their department - will resign by convention (Crichel down affair - minister of agriculture had to resign) - however not always the case - Michael Howard
Collective ministerial responsibility - all ministers will publicly support a decision - allows the government to put on a united front otherwise will resign (NHS Charges - 3 ministers including future PM Harold Wilson resigned when labour government created charges for NHS in 1951)
Because they are conventions are not enforceable by the courts - but are generally followed due to policy considerations (e.g. would be uproar if queen decided to no longer grant royal assent)
Briefly explain why Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 is a seminal case of UK administrative law.
Facts: GCHQ case - those who worked at GCHQ were not allowed to go on strike or join a union - government alerted by means of prerogative power and the union sought judicial review - lost challenge BUT:
Seminal because the court recognised that they had power to review prerogative powers (change from anti-apartheid case in which was ruled was not open to the court to rule how prerogative powers should be used) - from GCHQ has led to prerogative powers being challenged in later cases (ex parte Bentley)
HoL said that executive is not immune from judicial review because of the royal prerogative - prerogative legislation can be ruled in the same way as prerogative acts.
In this way, recognised that the rule of law is not absolute - national security as well as other public interest considerations can outweigh the Dicean injunction forbidding wide discretionary and arbitrary powers
Also determined 3 grounds on which can seek judicial review of a public body: illegality, irrationality and procedural impropriety
What is the main significance of the House of Lords’ decision in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]?
Facts: criminal injuries compensation scheme operated under royal prerogative but was replaced by provisions under the Criminal Justice Act 1998 - allowed the Home Secretary to introduce a scheme at a later date - had not done this 5 years later and just amended original scheme, held that minister could not ignore an AoP ← he was acting ultra vires
Decision instrumental: judiciary holding the executive to account
SoP: demonstrative case for how both majority and minority used SoP doctrine to justify different conclusions based on same facts (majority said should get involved because minister had breached duty, minority said wasn’t for court to decide on legislation matters)
Given that the UK does not have a formally codified constitution, what are the sources of the UK constitution?
K has an ‘unwritten’ constitution which means that there is no single document which sets down the power relations within the state Distinction between ordinary and constitutional sources in the UK Statutes - set out in Thoburn - constitutional statutes are those which govern the legal relationship between citizen and the state in some overarching manner or enlarges/diminishes the scope of what we call fundamental constitutional rights Common law sources - e.g. Entick v Carrington Royal prerogative (remaining portion of the crown’s original authority e.g. GCHQ), constitutional conventions (e.g. royal assent) and EU law (e.g. regulations and directives, article 3 of the ECHR)
What is the main significance of the obiter dicta comments of Lords Steyn and Hope and Baroness Hale in “the Hunting Act case” (R(Jackson) v Attorney General [2005] UKHL 56)?
The court accepted that it had jurisdiction to contest the legality of an AoP (how it was enacted) which goes against a constitutional convention that the courts cannot challenge an AoP (in this case they discussed whether the Parliament Act 1911 had been properly created)
Obiter, judges suggested that the court could strike down an AoP if it went against fundamental constitutional principles. Hale, Steyn and Hope all said that parliamentary sovereignty was no longer a fundamental constitutional doctrine of the UK. All said it is now the rule of law (principle of legality) which governs the UK which is a departure from the idea that only Parliament can make/unmake any law and can strike down primary legislation. Suggested that the Diceyan notion of parliamentary supremacy no longer reflects the true constitutional position
This creates expansion of the courts into the political arena, confirming the idea of a ‘constitutional court’. Demonstrates that the doctrine of rule of law is a constraint on the idea of parliamentary sovereignty
PARLIAMENTARY SOVEREIGNTY WAS DERIVED FROM THE COMMON LAW - Steyn
Briefly, list and describe the main “political” and “legal” means of holding the government to account.
Political = parliament holding the executive to account
PM question time, ministers questions (though not always effective)
Select committees and standing committees
Constitutional conventions - those which are not enforceable in court but would ‘ruin’ political careers if they went against them e.g. collective and individual ministerial responsibility
Legal = judiciary holding the executive to account
Judicial review - review of public bodies (illegality, irrationality, and procedural impropriety) - GCHQ case
Example: Entick v Carrington - the state is not above the law
