Lecture 17 essay Flashcards
INTRO-what might we define jr as?
define JR as the mechanism by which the Judiciary ensures that public (Executive) bodies act within the powers that they have been granted by making decisions in the right way, and do not exceed or abuse those powers
INTRO-what is the question concerned with for lecture 17?
question concerns the constitutional justification for JR
INTRO- what do these powers usually derive from?
These powers usually derive from statute, although some Executive powers derive from the Royal Prerogative (RP)
INTRO- what should you always refer to before leaving intro?
always refer to the person quoted (here, Carroll) and give an early indication, to be confirmed in more detail in our conclusion, whether we agree with the quotation itself, and why (never forget to say why)
INTRO- what do you do after quoting?
write quote actually said & apply relate and apply context e.g we might suggest that Carroll is arguing that JR not only complies with the RoL, the SoP and PS but actually epitomises and promotes them by giving practical effect to them
what do we to do then do?
We then need to get off the fence and give an early indication, to be reinforced in our conclusion, whether we agree with Carroll and, crucially, why
MAIN BODY DEFINE-what must we do for the first main body?
Define what is meant by Judicial Review -
MAIN BODY- why must we repeat it?
we might repeat here that it is the process by which the High Court reviews whether public bodies have acted within the powers they have been granted
MAIN BODY- where do these powers derive from?
These powers usually derive from statute, although some Executive powers derive from the RP
MAIN BODY- what did judiciary establish?
The Judiciary established in CCSU (the GCHQ case) 1984 that the exercise by the Executive of the RP may also be reviewable
MAIN BODY EXPLAIN CONST JUST - Explain why it requires constitutional justification?
We might argue that it is important to understand how JR fits into the overall constitutional picture, because there must be some justification for the (non-elected) Judiciary subjecting to JR decisions of democratically accountable decision-makers who are in turn exercising powers granted to them by a democratically-elected Legislature
MAIN BODY ASSESS- what then do you next do?
Assess the relationship between Judicial Review and those doctrines identified by Carroll
MAIN BODY ASSESS - How JR sits with the Rule of Law (RoL)?
-Whilst not expressly empowered to uphold the Constitution, the UK Judiciary has played an important constitutional role in protecting the rights of the individual constituent (eg: it was the courts who established the common law habeas corpus principle)
what can be an extension of the judiciary?
JR can be seen as an extension of that role, so we might argue that the Judiciary is upholding the RoL (the idea of government according to the law)
what if disputes arise from such power?
If disputes arise from the exercise of such power, the courts provide a potential means of redress
They are concerned to see that statutory duties are fulfilled and that any Executive discretion is genuinely brought to bear
thus what is it difficult to argue?
So it’s difficult to argue against this element of the Judiciary’s traditional justification for JR that it ensures that the Executive does not exceed or abuse the powers granted to it by the Legislature, thus preserving the RoL