Week 21: Judicial Review Flashcards
Roughly describe the breadth of judicial review subject matter
- River Action UK sought judicial review of the Environment Agency over pollution in the river Wye from chicken waste.
- Individual asylum seekers won a JR case against the Government for the unlawful Rwanda Asylum plan – R (AAA and others) v Secretary of State for the Home Department [2023] UKSC 42
- The Scottish Government’s Gender Recognition Bill was blocked by the UK government following JR under s.25, Scotland Act 1998: Petition of Scottish Ministers for Judicial Review of the Gender Recognition Reform (Scotland) Bill [2023] CSOH 89
- Various aspects of Brexit have been subject of JR, notably in the two Miller cases.
Describe how judicial review works
LEGAL POWER
- Said to have been exercised unlawfully
- Make an application or petition for judicial review
- Petitioner/claimant argues on the basis of recognised grounds of review
- Courts consider the legality as opposed to the merits of the decision
- Courts decided what remedies, if any, to award
Why is judicial review important to the Constitution
- Separation of powers
- Sovereignty of Parliament
- Accountability
- Rule of law
What is the purpose of judicial review
- To give effect to the intention of Parliament – Ultra Vires principle. Courts had to decide whether power exercised lawfully (Intra Virus) or unlawfully (ultra virus)
- Common Law and the rule of law also relevant. Judges are applying these when considering.
- A combination of the two
Purpose of judicial review: Intention of Parliament
Describe the historical basis and modern doctrine of the ultra vires concept.
- Historically – excess of power of statutory bodies = body acting beyond prescribed statutory powers
- Modern doctrine – broad concept of unlawfulness
- Content of the doctrine is evolving as grounds of review are developed by the courts
Purpose of judicial review: Intention of Parliament
The ultra vires debate – problems with the doctrine
- Historically – courts role in interpreting statutory powers meant ultra vires doctrine justified judicial review
- Modern debate – whether the ultra vires doctrine can still be considered the sole justification for judicial review (prerogative powers, non-statutory bodies)
- JR not really based on Parliamentary intent
- Supported by a concept of democracy that is too narrow
Explain the purpose of judicial review in relation to common law
Parliament must act compatibly with requirements of rule of law and unwritten constitution
“… the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the […] Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.” Lord Steyn, Jackson v Attorney General [2005] UKHL 56, [102]
Constitutional importance of JR underlined by s.6 HRA and by devolution
Explain the purpose of judicial review in relation to the fact there is no single foundation of judicial review
Reality is more complex
Unrealistic to try to identify a single justification for JR
- Council of Civil Service Unions v Minister for the Civil Service (the ‘GCHQ’ case) [1985] AC 374, Lord Diplock: “Judicial Review provides the means by which judicial control of administrative action is exercised”
- R v Secretary of State for the Home Department, ex p Brind [1991] 1 A.C. 696, Lord Templeman: “Judicial review [is] a remedy invented by the judges to restrain the excess or abuse of power”
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R (Evans) v Attorney General [2015] UKSC 21; [2015] AC 1787: It is “fundamental to the rule of law that decisions and actions of the executive are… reviewable by the court…” (Lord Neuberger, [52]. c.f. “the rule of law is of the first importance. But it is integral to the rule of law that the courts give effect Parliamentary intention…”(Lord Hughes, [154]
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What questions for the court arose from the case of Miller (No.2) [2019] UKSC 41
Central question
- Was the PM’s advice to the Queen to lawful? - was it lawful for him to go to the queen and say we need to prorogue parliament and she by convention would have agreed
To answer this, must ask:
- Is this matter justiciable in a court of law, i.e is it matter of law?
- If it is, “by what standard is its lawfulness to be judged?”
- Applying that test, is it lawful?
- What remedy should the court give?
Justiciability
What were the PM’s arguments and the courts response in Miller (No.2) [2019] UKSC 41
PM’s arguments
- PM is “accountable only to Parliament” and therefore “the courts should not enter the political arena but should respect the separation of powers” [28]
Court’s response
- Exercise of prerogative power is open to review
- Courts “cannot decide political questions” but “the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy” not enough for the courts to refuse to consider it [31]
- If matter justiciable, deciding it “will not offend against the separation of powers” [34]
What is the role of the courts in relation to Miller (No.2) [2019] UKSC 41
“In giving effect to constitutional principles, “the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone.” [39]
Miller (No.2) [2019] UKSC 41 – What is the standard to be applied
Relevant principles:
- Parliamentary sovereignty would be undermined if power to prorogue unlimited
- Accountability of government impossible during period of prorogation
Limit on power to prorogue:
- “A decision to prorogue Parliament…will be unlawful if prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions…as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course”. [50]
Describe the outcome of Miller (No.2) [2019] UKSC 41
Was the matter justiciable?
- YES – the courts can rule on the extent of prerogative powers
By the standard set out at [50], was prorogation unlawful?
- YES – effect was to frustrate role of Parliament, and no justification was given
What remedy?
- Prorogation null and of no effect: Parliament has not been prorogued
What is amenability?
- A question as to whether the decision/decision-maker can be reviewed
- Also, is there a public/private distinction? And does it matter for JR
Describe the differences between English and Scottish law regarding public and private distinction
- England & Wales: distinction between “public” bodies and “private” bodies. Can only review the exercise of “public functions” (r.54.1, Civil Procedure Rules). See Anston Cantlow v Wallbank [2003] UKHL 37; CCSU v Minister for the Civil Service [1985] AC 374; R v Panel on Takeovers and Mergers, ex parte Datafin [1987] 815
- Scotland: no distinction between public and private law – “[t]he competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy.” West v Secretary of State for Scotland 1992 SC 385, at 412-413
