Scope of Judicial Review

Question 1

What can be judicially reviewed?

Answer 1

(i) Under part 54 of the Civil procedure rules “any enactment” can be reviewed;
(a) Primary UK legislation under limited exceptions (does not apply to act of UK parliament)
(b) Act of Scottish, Welsh, NI assemblies

(ii) A decision, action or failure to act in relation to the exercise of a public function

Question 2

What is the difference between Big C constitutions and Little c constitutions?

Answer 2

Big C constitutions are ‘higher law’ than anything else, whereas, a little c constitution, like in the UK, is not a higher law.

Question 3

Why does the UK not have an equivalent to constitutional judicial review?

Answer 3

France has a written constitution which imposes rules of “equality of the charges” which means they wouldn’t be able to breach these rules (Constitutional JR), whereas, in the UK we have Parliamentary Supremacy and Royal Prerogative and thus have no equivalent.

Question 4

Can an act of UK Parliament be challenged at all?

Answer 4

In limited situations;
(a) If an Act is contrary to EU law e.g. Factortame

In situation where UK law contradicts EU law ss1-2 of the ECA 1972 make EU law supreme to UK law.

Question 5

If parliament is sovereign, then why do UK Acts have to be in line with EU law?

Answer 5

Because in 1972 Parliament exercised their sovereign right to join the EU and therefore while the UK are part of the EU any act that contradicts EU law.

Question 6

Does the UK have constitutional judicial review?

Answer 6

In theory no, it does not exist, however, in respect to EU law it does as Factortame showed us.

Question 7

What are the facts of the R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)?

Answer 7

The Miller case came about where the Prime Minister wished to use her power of Royal Prerogative to trigger Article 50 without Parliamentary consent.

The case showed that you can review the action of the executive where the action could alter the rights of individuals

Facts;

(a) Theresa May stated she would trigger article 50 using the Royal Prerogative
(b) as the referendum was advisory, the issue raised as to whether it was advisory to the government or advisory to the UK parliament.
(c) The Argument was that as Parliament gave the rights issued by the UK then it should be Parliament who decides whether to give them away, not the government.

Question 8

What did the Supreme Court rule in the Miller case?

Answer 8

(a) That article 50 could not be triggered without an act of UK Parliament allowing it to do so
(b) That the devolved assemblies had no power to veto the bill.

Question 9

Could Parliament get rid of ALL judicial review?

Answer 9

(a) The doctrine of supremacy says yes
(b) However, legal constitutionalists as that the courts would have to intervene.
The case of AG Jackson stated that parliamentary supremacy is “not unlimited if it ever were” and gave abolishen of JR as an example

Question 10

What is the principle of legality?

Answer 10

Where there is a legal barrier on parliamentary supremacy, where the Courts will put the fundamental rights of individuals before that of parliamentary supremacy.

Question 11

What are the fundamental aims of judicial review?

Answer 11

(a) to give effect to the intention of parliament or government depending on source of the legislation
(b) To promote the rule of law: Liverside the HL stated that at times of war the obligations of the secretary of state must be altered to accept the reality of war

Question 12

What are the differences between JR and appeals?

Answer 12

JR;

(a) Legality
(b) Supervisory NOT appellate jurisdiction
(c) purpose is not to substitute decision
(d) Not available where a statutory right of appeal exists

Appeals;

(a) Statutory
(b) Power to substitute decision of lower courts
(c) scope and powers depend on specific statutory scheme
(d) full re-hearing may take place

Question 13

What is the scope of review?

Answer 13

Rules identifying the category of decisions and decision making bodies that fall within the review authority of courts

Question 14

Difference between legal constitutionalism and political constitutionalism?

Answer 14

Legal constitutionalism – Adoption of Judicial Review and the Human Rights Act. Fundamental rights precede the political process
Political Constitutionalism - It is both the engine of the democratic process and the mirror that reflects the citizens’ critical judgment

Question 15

In the UK we have limited constitutional judicial review, why is that?

Answer 15

Although we have no constitution in regards to;

(a) EU law constitutional JR can take place
(b) Principle of Legality
(c) Review of RP

Question 16

SCENARIO: John has his application for a pub license rejected, he wants to undertake Judicial Review and asks how the process works?

Answer 16

(a) Who is the decision maker and can the decision be reviewed
(b) Is John eligible to apply for judicial review? Is John sufficiently affected by the decision
(c) Is there a time limit or ouster clause
(d) Is there an alternative remedy
(e) What is the procedure for review
(f) Remedies
(g) Grounds for review

Question 17

Who can be reviewed in England?

Answer 17

Ministers, government departments, local authorities, non-departmental bodies, standard setting and regulatory bodies

Question 18

What is the functional bodies test?

Answer 18

A way of determining which types of bodies an be judicially reviewed;

(a) R v City on Takeovers and Mergers ex parte Datafi. Court of Appeal found that private bodies could be susceptible to JR if they have been granted public powers by the government
(b) R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 - decisions of the disciplinary committee of the Jockey Club were not decisions within the sphere of public law. Even if some decisions of the Jockey Club were capable of review, the particular decision not to approve A as a chairman of local stewards had no public element about it which infringed some public law right of A

Question 19

Do public bodies include courts and tribunals?

Answer 19

Yes, s6 of the Human Rights Act 1998 includes courts and tribunals

Question 20

Where the body is private in respect of JR proceeding what is the question?

Answer 20

(a) Would a breach of contract route be open to the claimant

(b) If there is then no JR

Question 21

In England Judicial review takes place on inherently public bodies, what is the stance in Scotland?

Answer 21

(a) Nothing inherently public
(b) Review does not depend on a public/private distinction
(c) Scope is defined directly in relation to the powers of the Court of Session -Rules of Court, Ch 58
(d) Tripartite Test

Question 22

What did the case of West v Secretary of State for Scotland 1992 establish?

Answer 22

(a) Competence of jurisdiction does not depend on public – private distinction
(b) Court of Session – exclusive jurisdiction over decisions on the basis of statute, agreement or other instrument
(c) Courts in Scotland are not bound by the English position
(d) For a decision to be reviewable, a tripartite relationship must exist between parties

Question 23

For there to be grounds for JR in Scotland there must be a tripartite relationship, what is this?

Answer 23

relationship between the source of the decision making power, the person or persons to whom that decision making power has been delegated and the person or person affected by that decision making power

Question 24

What was established in the case of Naik v University of Stirling 1994?

Answer 24

That the tripartite test is restrictive but id recognised between a student, the University and the Royal Charter.