Judicial Review: Introduction Flashcards
Judicial review centres primarily around the merits of a decision and whether they agree with it or not as opposed to how the decision was made (T/F).
False.
Lord Justice Laws: : [the court] does not ask itself the question of is this wrong? And judicial review has nothing to do with the question ‘which view is the best one’.
Where there is a statutory right of appeal, where must grievances be tried?
The relevant tribunal.
Where there is no statutory method of redress available, where can one find an effective remedy?
Judicial review.
Does the court have a free roaming mandate?
No.
Why has the common law not developed in such a way that would allow the court to determine whether a decision is right or wrong?
Institutional capacity
* Say for instance, the court was presented with a case concerning the construction of an airport. The relevant authority fails to consult those who would be directly affected. i.e. those whose properties lie within the flight path.
* The court would be entirely within their right to question why local residents weren’t consulted, thereby considering whether procedural fairness was exercised.
* However, the court wouldn’t be entitled to rule in favour of any particular campaign group because of the environmental impact an airport may have.
* In circumstances where the court lacks the necessary knowledge (i.e. the the consequence of carbon emission) they will tend not to second-guess the decision maker.
Democratic legitimacy
* The court doesn’t have a democratic mandate to strike down government decisions.
* For the court to take issue with the procedural fairness exercised prior to the decision making still allows the minister to continue with the project given that they adhere to the necessary standard of procedural fairness, however
* Were it to be the case that the court strikes down the construction outright because of its environment impact, that doesn’t allow for an method of redress and is therefore objectionable.
Ultra Vires
Beyond the power
Explain the common law theory, in relation to Judicial Review.
- The common law theory suggests that that regardless of where a power is derived from (statute or otherwise), the common law intends that there be an effective method of redress.
- The is consistent with the thinking that as opposed to be a statutory creation, the supreme court is rooted in the common law and is therefore entitled to adjudicate over matters concerning the common law and widening its scope of review to more than that prescribed by parliament.
What are the two primary schools of thoughts on the issue of if a statute were to expressly allow a minister to act in a procedurally unfair way?
For instance having a minister with extensive shares in a company be the decision maker who determines whether that company gets a government bailout.
Proponents of the common law theory would suggest that despite being the express will of parliament, the matter would still be justiciable.
* This therefore raises questions of Parliamentary Sovereignty.
- With reference to this area of conflict there are two predominant voices: that of Forsythe, and that of Laws LJ.
- Forsythe: Parliament either does or does not authorise a minister to act
- Laws LJ: Parliament can have no intention when granting power to ministers, thereby creating a vacuum which allows judicial review and by extension the common law to operate.
