Lecture 17 essay

Question 0

INTRO-what might we define jr as?

Answer 0

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

Question 1

INTRO-what is the question concerned with for lecture 17?

Answer 1

question concerns the constitutional justification for JR

Question 2

INTRO- what do these powers usually derive from?

Answer 2

These powers usually derive from statute, although some Executive powers derive from the Royal Prerogative (RP)

Question 3

INTRO- what should you always refer to before leaving intro?

Answer 3

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)

Question 4

INTRO- what do you do after quoting?

Answer 4

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

Question 5

what do we to do then do?

Answer 5

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

Question 6

MAIN BODY DEFINE-what must we do for the first main body?

Answer 6

Define what is meant by Judicial Review -

Question 7

MAIN BODY- why must we repeat it?

Answer 7

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

Question 8

MAIN BODY- where do these powers derive from?

Answer 8

These powers usually derive from statute, although some Executive powers derive from the RP

Question 9

MAIN BODY- what did judiciary establish?

Answer 9

The Judiciary established in CCSU (the GCHQ case) 1984 that the exercise by the Executive of the RP may also be reviewable

Question 10

MAIN BODY EXPLAIN CONST JUST - Explain why it requires constitutional justification?

Answer 10

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

Question 11

MAIN BODY ASSESS- what then do you next do?

Answer 11

Assess the relationship between Judicial Review and those doctrines identified by Carroll

Question 12

MAIN BODY ASSESS - How JR sits with the Rule of Law (RoL)?

Answer 12

-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)

Question 13

what can be an extension of the judiciary?

Answer 13

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)

Question 14

what if disputes arise from such power?

Answer 14

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

Question 15

thus what is it difficult to argue?

Answer 15

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

Question 16

what does jr seem to satisfy?

Answer 16

JR does seem to satisfy the RoL requirement that everybody - including the Government - is equal before the law Elliott goes as far as to argue that ‘the principles of administrative justice are rooted in the constitutional bedrock of the RoL’

Question 17

what does rol seek to do?

Answer 17

The RoL seeks to control and impose limits on the Government by insisting that it acts in accordance with laws and operates within the law: the idea of legality

Question 18

what does rol import?

Answer 18

The RoL also imports standards of fairness, rationality, certainty and to give practical effect to the idea of legality and the enforcement of these standards

So we might agree with Carroll that JR gives practical effect to the RoL

Question 19

How JR sits with the Separation of Powers (SoP)?

Answer 19

The political doctrine of the SoP, Montesquieu, holds that the executive, legislative and judicial branches of state should be separate in terms of functions and personnel, the aim being to prevent the exercise of arbitrary power.

Question 20

what does the lack of unwritten const mean?

Answer 20

The lack of a codified / written constitution in the UK means there is no formal SoP, so it is important that there are checks on the use and abuse of power by the Executive (especially given executive dominance of the Legislature), and a mechanism for resolving disputes concerning the exercise of power by the state over its citizens

Question 21

what is there between the rels of jr and sop?

Answer 21

There is an irony in the relationship between JR and the SoP

In terms of the way JR operates, it is difficult to argue against this element of the Judiciary’s traditional justification for JR

Question 22

How does jr reach the req?

Answer 22

JR does seem to meet the SoP’s requirements in that it is a e.g of a check and balance system with all three powers:

the Leg decides how much decision making power to give to the Executive,

the Executive then uses 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

So it might be argued that the doctrine of the SoP ensures that no body has too much power and supposes a system of checks and balances to guard against abuse of power

Question 23

what is in the excercise of the jr function?

Answer 23

In the exercise of its JR function, the Judiciary is giving expression to the SoP by checking the exercise of power by the Executive and ensuring it does not abuse its power and position

Question 24

how is the judiciary justification lent further?

Answer 24

The Judiciary’s justification is lent further credence when it created JR, it imposed constraints on itself

one of these constraints is that the courts are restricted to judging the legality of decisions (or omissions) and are limited to reviewing the way in which a decision is reached (although the Judiciary surely is open when assessing irrationality claims)

Also, if the courts quash an original decision, they cannot replace it but must instead leave the body to make a new decision, this time correctly

Question 25

What was the traditional justification?

Answer 25

The traditional justification for the courts’ role in carrying out such review is that they ensure that public bodies act within the legal limits of the powers they have been granted and adopt basic standards of procedural fairness in decision-making, and yet the UK constitution, unlike the US constitution, does not grant judges the power to review legislation to establish whether it complies with the terms of that constitution

Question 26

what are courts arguably doing?

Answer 26

Through reviewing the acts, decisions etc superior courts are arguably upholding the will of Parliament, and therefore Parliamentary supremacy

Question 27

which academics support the traditional justification?

Answer 27

Indeed, academics such as Forsyth and Elliot have espoused theories, such as the ultra vires theory and the modified ultra vires theory, which support the Judiciary’s traditional justification for JR

Question 28

which academics go against it>?

Answer 28

But other academics, such as Craig and, notably, Cane, have highlighted that it is all too easy to pick holes in the PS element of the Judiciary’s justification
So it is hard to agree with Carroll that JR gives practical effect to PS

Question 29

what did cane highlight?

Answer 29

Cane highlighted three main weaknesses in the PS element of the Judiciary’s justification for having created and then executed JR

Question 30

what is the 1st weakness?

Answer 30

(1) Cane argues it is unrealistic to argue that the process of interpreting statutes, resolving & filling gaps is just a matter of giving to the intentions of Parliament, not least because the incorporation into UK law of EU law through the ECA 1972 and the ECHR through the HRA 1998 enabled the Judiciary to use the purposive method of interpretation of statute that had always been used by the ECJ in Luxembourg and the ECtHR in Strasbourg

He argues that, even if a multi-member body (Parliament) following simple majoritarian voting procedures can be said to have intentions, the Judiciary can hardly be said always to be following those intentions when the purposive method of interpretation allows it to insert its own words into statute, so that it is arguably doing Parliament’s job of making law rather than merely interpreting law

Question 31

what is the 2nd weakness?

Answer 31

2 He argues that the Judiciary has repeatedly shown itself to preserve its jurisdiction to supervise the exercise of public power, stretching even to being prepared to defy rather than uphold Parliament’s will

Question 32

Cane gives 3 examples of conduct which is inconsistent with PS what are they? 1

Answer 32

i) in Anisminic 1969, far from upholding the will of Parliament, the Judiciary effectively refused to obey it

Parliament had passed an enabling Act, the FCA 1950, creating the FCC, including, at s4(4), a complete ouster clause stating that the FCC’s decisions would be final and could not be challenged

But the HL effectively disobeyed Parliament’s will, as expressed in s4(4), and allowed Anisminic to seek JR of a decision by the FCC not to grant it any compensation for confiscation of its failure to uphold s4(4)

Question 33

Cane gives 3 examples of conduct which is inconsistent with PS what are they? 2

Answer 33

ii) the attitude of the courts to the exclusion of the rules of natural justice Judiciary is in fact only interested in upholding Parliament’s will where it suits what the courts are trying to achieve (in this case imposing their own common law based standards of fairness)

Question 34

Cane gives 3 examples of conduct which is inconsistent with PS what are they? 3

Answer 34

iii) cases where an enabling Act of Parliament empowers a Minister to ‘act as he is further proof that a concern to uphold Parliament’s will is not what drives the Judiciary in its execution of JR

Question 35

what is the 3rd weakness?

Answer 35

(3) The third weakness Cane is essentially arguing that the Judiciary cannot use the PS element of its traditional justification for JR re the expansion of the scope of JR to include JR of ‘justiciable’ prerogative powers

Question 36

why is this because of for 3rd weakness?

Answer 36

This is because Parliament had nothing to do with the creation of prerogative powers, which were established by King Henry VIII around 500 years ago

A counter argument to this third weakness in the PS element of the Judiciary’s traditional justification for JR might be that there have been cases - such as Fire Brigades Union 1995 - in which one of the key reasons for the HL finding against the Executive was because use of the RP would frustrate the will of Parliament

Question 37

what is the overall of it?

Answer 37

Overall, though, we might reasonably argue that there are too many flaws in the PS element of the Judiciary’s traditional justification for JR

Question 38

Cane has suggested that JR might better be justified by arguing:?

Answer 38

i) there are certain features of the UK Constitution which are so precious that any attempt by Parliament to change them would either simply fail or cause a constitutional crisis, and he includes JR
ii) it is in fact the Executive which is, in practice, the dominant branch of the UK Constitution despite the theory that Parliament is supreme, so it’s important to keep the Executive under control

Question 39

what is by contrast of canes suggestions?

Answer 39

By contrast. Forsyth and Elliot argue, in their modified ultra vires theory, that Parliament has a general intention that the discretionary power it grants should be exercised in accordance with the RoL

Whether Cane is right, or whether Forsyth and Elliot are right, we can safely conclude that Carroll’s assertion that JR gives effect to PS is open to challenge

Question 40

CONCLUSION- to answer?

Answer 40

Conclusion of Answer

As we did in our introduction, we should always refer to the person quoted (here, Carroll) in our conclusion

We should confirm, in more detail than we did in our introduction, whether we agree with the quotation itself, and why (we must never forget to say why)

By doing so, we force ourselves to answer the specific question and won’t lose marks for being seen simply to be listing everything we know about the topic (here, how JR sits with UK constitutional doctrines and ideals)

Assess means we must clarify our opinions in our answer to the question and, crucially, give reasons for our opinions

We might argue, for example, that Carroll’s statement that ‘… It is through the exercise of [Judicial Review] that the British Constitution gives practical effect to … the doctrines of the sovereignty of Parliament, the rule of law and the separation of powers … ’ is very true in relation to the RoL, and true in relation to the SoP in terms of its execution if not its creation, but is much less true in relation to PS because of the many flaws we have highlighted in the Judiciary’s traditional justification for JR that it upholds PS

Question 41

CONCLUSION- to lecture 17?

Answer 41

Assess means we must clarify our opinions in our answer to the question and, crucially, give reasons for our opinions

We might argue, for example, that Carroll’s statement that ‘… It is through the exercise of [Judicial Review] that the British Constitution gives practical effect to … the doctrines of the sovereignty of Parliament, the rule of law and the separation of powers … ’ is very true in relation to the RoL, and true in relation to the SoP in terms of its execution if not its creation, but is much less true in relation to PS because of the many flaws we have highlighted in the Judiciary’s traditional justification for JR that it upholds PS