Lecture 16666 essay

Question 1

The second element of our CAL module breaks down into two parts?

Answer 1

i) enforcement of ECHR rights

ii) Administrative Law (AL)

Question 2

what is administrative law?

Answer 2

AL is the body of law which governs the activities & decisions made by - governmental agencies

Question 3

When we considered the CL element of our CAL module, what were we introduced to?

Answer 3

the principles which underpin the UK Constitution and explored their operation in a practical context

Question 4

in the al what will we have the opportunity to develop?

Answer 4

develop our knowledge of an area of law which expanded greatly during the last century as more governmental agencies were created

Question 5

why were the governmental agencies created to do?

Answer 5

to regulate the increasingly complex social, economic & political spheres of the UK

Question 6

what will our focus in al be on?

Answer 6

the mechanism of Judicial Review (JR)

Question 7

what is the brief answer of what jr actually is?

Answer 7

JR is the mechanism by which the Judiciary ensures that public (Executive) bodies act within the powers that they have been granted (by Parliament) by making decisions in the right way, and do not exceed or abuse those powers

Question 8

The mechanism of was created by?

Answer 8

The mechanism of JR was created by the Judiciary itself over 150 years ago

Question 9

what might we therefore argue?

Answer 9

that the estab of JR was controversial bc it was created undemocratically by an unelected Judiciary in contravention of the Separation of Powers, as it should be the Legislature that makes the law and establishes such a mechanism

Question 10

what may we also argue?

Answer 10

since it is the Exec that introduces bills into the Legislature, inclu. enabling Acts of Parliament, the Executive derives its powers to make secondary legislation not from Parliament but from itself

Question 11

what might we similarly argue?

Answer 11

As the Judiciary does - that it is very important that there is a system in place to guard against Executive abuse and ensure that these self-awarded powers to implement secondary legislation are checked and balanced

The counter argument is that the Executive should not be so limited that it cannot exercise its discretion to conduct its work efficiently

Question 12

what is the counter argument?

Answer 12

The counter argument is that the Executive should not be so constrained that it cannot exercise its discretion to conduct its work efficiently and expeditiously

Question 13

what are the constraints you can think of which the Judiciary, when creating JR, imposed on itself to protect Executive discretion?

Answer 13

i) Out of respect for Parliamentary Supremacy, which prevents it from challenging primary legislation , the Judiciary will only review secondary legislation made by the Executive and not primary
ii) JR is a reactive rather than proactive mechanism as the Judiciary may only review a decision where it is asked to do so by a claimant

Question 14

what is the 3rd constraint?

Answer 14

iii) Even where the Judiciary is asked to carry out JR, it may only review the validity of the decision making process & not assess the morality or merits of the decision itself

Question 15

what is the 4th constraint?

Answer 15

iv) Although the Judiciary may quash the original Executive decision, it may not replace that original decision with its own decision

Question 16

what is the 5th constraint?

Answer 16

v) JR can only be sought by a claimant as a last resort (ie the claimant must first have exhausted all other routes of appeal)

Question 17

what is the 6th constraint?

Answer 17

vi) JR can only be sought of final decisions, not interim decisions

Question 18

what is the 7th constraint?

Answer 18

vii) Claimants must first meet as many as 5 preliminary requirements in order for JR claims to proceed

Question 19

what can we see in summary due to the constraints

Answer 19

comparison with a US judge, a UK judge is greatly limited

And yet, for all that, we have already noted that the establishment of JR was controversial because it was created undemocratically by an unelected Judiciary in contravention of the Separation of Powers as it should be the Legislature that makes the law and establishes such mechanism

Question 20

what is uk judge limited in?

Answer 20

unable to question primary leg also liited in his or her ability to challenge secondary leg

Question 21

And yet for all that what have we already noted?

Answer 21

that the estab of JR was controversial bc it was created undemocratically by an unelected Judiciary in contravention of the Separation of Powers as it should be the Legislature that makes the law and establishes such mechanism

Question 22

So how do we think the Judiciary has traditionally justified JR?

Answer 22

judiciary might argue that jr is in line with key consitutional principles being:

i) the Rule of Law
ii) The Separation of Powers
iii) Parliamentary Supremacy

Question 23

what in regards to rule of law?

Answer 23

The Rule of Law requires that everybody - including the Government - is equal before the law

Judiciary argues that JR ensures that the Executive does not exceed or abuse the powers granted to it by the Legislature, thus preserving the Rule of Law

Question 24

what in regards to seperation of powers?

Answer 24

ii) The Separation of Powers:

This political doctrine requires that the three branches of state should be separate, unique and equal

The Judiciary argues that JR meets these requirements as it is a e.g of a check and balance system involving all three powers, bc:
the Legislature decides how much decision making power to give to the Executive;
the Executive then utilises that power; and
the Judiciary then oversees the Executive’s use of that power to ensure the Executive does no more and no less than the Legislature has required it to do in the relevant ‘enabling’ Act

Question 25

what in regards to Parliamentary Supremacy?

Answer 25

Due to lack of time and expertise the leg passes across to exec enabling act- discretion to make delegated leg in sev areas

judiciary argue that jr makes sure exec do not go beyond powers laid down by leg & uphold legal doctrine of parl supremacy

Question 26

what is the basic procedure in bringing a jr claim?

Answer 26

JR claimants must issue their claim forms in the Administrative Court (AC), which is a specialist court within the High Court (HC)

Question 27

what are the two overall stages to the jr procedure?

Answer 27

1 the permission stage 2 the hearing stage

Question 28

what happens in the permission stage?

Answer 28

Claimants must:

(i) state in their claim forms that they want to carry with a JR claim;
(ii) provide a detailed statement of their grounds, the facts & supporting evidence;
(iii) state the remedies they are seeking
(iv) ‘serve’ their claim forms on the defendant(s) (and any other interested parties)

Question 29

what will the ac then do?

Answer 29

• decide whether to give permission to c’s to carry on with claims and they make the decision ‘on the papers’
• At the permission stage the c’s must satisfy the ac that they have met all 5 preliminary req
• c’s who dont get permission without hearing may request a hearing to get permission but if still no permission = no right to appeal

Question 30

what if the permission still granted?

Answer 30

If permission is granted to c’s, d’s (and any other interested parties) then may challenge permission granted, with their reasons for challenging the AC’s decision & must file their defence, along with reasons and any supporting evidence

The AC will then fix a date for stage 2, the substantive hearing of the claim

Question 31

what is the hearing stage?

Answer 31

usually confined to arguments on points of law, as the facts will rarely be in issue

Following the hearing, the judge will give his or her ruling

The usual time limit for bringing JR claims is 3 months - so only one quarter of the time claimants have to bring claims alleging breach of their ECHR rights

Question 32

how has the judicary expanded the scope of jr to include the excercise by the executive of its powers under the rp?

Answer 32

The Constitution is an apparent struggling for the final say between the Executive and the Judiciary

In particular, we saw that the UK Judiciary seems to exclude exec from any decision making process such as the involvement of exec decisions deporting asylum seekers or imposing control orders on terror suspects)

Question 33

what is the rp?

Answer 33

The RP is 1 of 7 sources of the UK Constitution and dates back to the reign of King Henry VIII (1509-1547)

Henry believed it was his divine right, or ‘prerogative’, as monarch, to add a third source of law to statute and case law by awarding himself prerogative powers (PP)

But, by 1649, just over 100 yrs after Henry’s death, the powers of the monarch decreased as unpopular taxes to raise money to fight foreign wars

Question 34

what happened by 1688?

Answer 34

by 1688 with king james 11 fleeing to france, powers of monarch had become more theoretical than actual By 1689, rule ix of the Bill of Rights had established Parliament as the supreme element of the UK Constitution and the legal doctrine of Parliamentary Supremacy (PS) has applied to the UK Constitution ever since

What this meant for the RP was that, over the ensuing centuries, most PP were replaced by Acts of Parliament, but some PP continue to survive today

One or two PP remain personal to the monarch, but these tend to be inconsequential PP (eg the right to keep royal swans)

Question 35

what about most pp that remain today?

Answer 35

most pp that remain today not enjoyed by monarch but by ministers e.g pm acting in crowns name as power of elected politicians have increased to fill void left by the decline of the monarchy. so rp is now excercised almost exclusibely by executive rather than monarch a sit heavily influenced by const conventions

pp may stay as pm unlikely to go through effort to reduce own powers

Question 36

so what has rp been variously defined as by albert?

Answer 36

‘… the remaining portion of the Crown’s original authority, and it is therefore… the name for the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers… ’

Question 37

so what has rp been variously defined as by blackstone?

Answer 37

‘ … that special pre-eminence which the King hath over and above all other persons…….those rights and capabilities which the King enjoys alone… ’

Question 38

what even prior to estab of ps was clarified by judiciary?

Answer 38

the Judiciary had clarified as long ago as 1611 - when monarchs still had real power - that no new PP can be created, and existing PP cannot be widened or extended

In the Case of Proclamations 1611, the influential Chief Justice Coke sought to keep the king (James I)’s legal powers within legal limits

Question 39

what was cokes view?

Answer 39

king only had pp which court regonised cannot grant himself new ones

Question 40

what did proclamations arguably mark?

Answer 40

starting point in the Judiciary’s long process expanding the scope of JR to include, as established in CCSU (the GCHQ case) 1984, JR of PP

Question 41

what did the judiciary establish in the case of proclamations 1611?

Answer 41

(i) the courts are the arbiters of whether a PP exists, and

(ii) the Executive cannot create new PP nor widen existing PP- bbc v johns supported by lord diplock

Question 42

what do we know from earlier?

Answer 42

(i) statute prevails (due to ps) when the RP conflicts with Acts of Parliament, as happened in:
A-G v De Keyser’s Royal Hotel 1920
Laker Airways v Dept of Trade 1977
R v SoS Home Dept (ex parte Fire Brigades Union) 1995

(ii) but, although statute overrides the RP where there is conflict, the two can operate side by side where no conflict exists, as in:
R v SoS Home Dept ex p Northumbria Police Authority 1989

Question 43

what was we then now do as we know what jr and rp are?

Answer 43

consider their relationship

We’ve already agreed the establishment of JR was controversial because it was created undemocratically by an unelected Judiciary in contravention of the Separation of Powers, when it should be the Legislature that makes the law and establishes such a mechanism

But we’ve also agreed that the Judiciary argues that, because the Legislature passes across to the Executive - in ‘enabling’ Acts of Parliament - the discretion to implement delegated legislation in several areas, JR answers a consequent need to ensure that the Executive, in reaching its decisions, does not go beyond the parameters laid down by the Legislature