Week 7 - Introduction to Judicial Review Flashcards
1
Q
What is Judicial Review
A
- It is a legal mechanism that challenges decisions made by public bodies.
- Petitioner/claimant argues on the basis of recognized grounds of review
- Courts consider the legality as opposed to the merits of the decision
- Courts decide what remedies, if any, to award
- The process typically begins with an application or petition.
2
Q
Judicial Review in the Constitution
A
- There is no fixed or universally accepted place for judicial review in the constitution.
- Concepts such as “justiciability” are not precisely defined.
- Opinion naturally differs as to where the lines between justiciability and non-justiciability should be drawn, whether a given matter is or is not a
“political question” and whether such matters are best left to the judiciary to determine or whether Parliament should intervene.
3
Q
Concepts relating to Judicial Review
A
- Separation of powers
- Sovereignty of Parliament
- Accountability
- Rule of Law
4
Q
Why was the reform of judicial review necessary?
A
- The 2019 Conservative Party manifesto highlighted concerns about the relationship between Government, Parliament, and the Courts, suggesting judicial review had sometimes been used to interfere too much in political matters.
- Independent Review of Judicial Review (IRAL), 2021:
- recommended statutory recognition of suspended quashing orders;
- reversal of Cart (R (on the application of Cart (Appellant) v The Upper Tribunal (Respondent) 2011] UKSC 28)
- removal of requirement that JR applications made “promptly”
5
Q
Current reforms of Judicial Review
A
Judicial Review and Courts Act 2022
- Discretion to suspend quashing orders
- Discretion to provide prospective only remedies
- Removal of Cart judicial reviews – no longer able to review a decision of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal.
- Infrastructure planning and judicial review reform proposal
6
Q
The purpose of Judicial Review
A
- Intention of Parliament (Ultra Vires Principle): Judicial review ensures that public bodies act within the limits set by law.
- Common Law and the Rule of Law: Judicial review is also justified by the need to preserve fundamental legal principles and ensure government action conforms to the unwritten constitutional standards.
7
Q
Intention of Parliament (Ultra Vires Concept)
A
- Historically: Public bodies acted beyond their legal authority (ultra vires) when they exceeded the statutory limits imposed on them.
- Modern Perspective: The doctrine is evolving into a broader concept of unlawfulness. Courts are developing new grounds for review that go beyond mere statutory interpretation.
- Debate: There is contention over whether the ultra vires doctrine should be the sole basis for judicial review, especially when considering prerogative powers and actions of non-statutory bodies.
8
Q
Common Law; Rule of law concept
A
- Rule of Law: Judicial review is an enforcement mechanism to ensure that governmental decisions comply with the fundamental principles of legality and fairness.
- Although the supremacy of Parliament is a long-standing principle, the courts assert that even a sovereign Parliament must act in a manner that aligns with the rule of law.
9
Q
Constitutional Importance of Judicial Review
A
- Council of Civil Service Unions v Minister for the Civil Service (the ‘GCHQ’ case) [1985] - “Judicial Review provides the means by which judicial control of
administrative action is exercised” - R v Secretary of State for the Home Department - “Judicial review [is] a remedy invented by the judges to restrain the excess
or abuse of power” - Judicial review is essential both as a check against abuse of power and as a means of ensuring that government actions remain within legal bounds
- Judicial review does not have a single justification; rather, it draws on overlapping ideas of accountability, democracy, and the rule of law.
