theories of judicial review

Question 1

theory

Answer 1

conceptual basis of a subject or area of study and is contrasted with practice

Question 2

dimensions

Answer 2

normative: values, the ‘ought’ questions - what law ought to be based on values that underlie it
analytical: logical structure of arguments
empirical: factual observation - what law is

reasonableness/rationality:
normative - separation of powers are an underlying issue
analytical - Qs of weight are separate from Qs or relevancy (of considerations)
empirical - how courts use different tests to different cases

Question 3

admin law theories

Answer 3

red light theories: premised on distrust of administrative discretion, emphasis on judicial role in preventing abuse of power

green light theories: need to enable policy making in public interest: preference for political accountabiity and reduced role for the courts
(based in carol harlow and richard rawlings law and admin book)

Question 4

ultra vires theory

Answer 4

courts intervene when a decision maker has acted beyond its legal powers (UV) directly linked with parl. sovereignty as legal powers are derived from parliament (legislation) and the tole of courts is to give effect to parl. intention
“what an all powerful parl. does not prohibit, it must authorise either expressly or impliedly.” - forsyth

BUT in ridge v baldwin the state did not provide for a hearing yet the courts decided that the decision maker had breached their duty to act fairly
problematic view as argues parl takes for and against view when sometimes parl has no intention on a particular matter

Question 5

addresses by common law theory

Answer 5

JR principles are common law Qs, they are created by the courts and supplemented by parliament
courts develop principles of ‘good administration’ - complements parl sovereignty as following legislation - happens in any area of common law

Question 6

modified ultra vires theory (reconcile original)

Answer 6

common law principles implied into parls. intent - parl intended public bodies act fairly and rationally when using powers so courts uphold parls general intent rather than specific intent

Question 7

unreasonableness v proportionality

Answer 7

green light theorists: suspicious of proportionality as engagement with policy but not happy with unreasonableness but more likely to dislike prop

ultra vires theorists: up to parl to decide if prop and not courts

Question 8

standing

Answer 8

red light = suspicious of discretion so should encourage more scrutiny by expanding standing
green light = more inclined to be against as solution is political not courts, good admin = secured by parl and democratic process not the legal process
common law take view because of centrality view of law more generous approach to standing should be taken
ultra vires = what did parl intend