Judicial Review 1 - The constitutional foundations of judicial review
Accountability
- Within democracy, the institutions of government are only going to gain the acceptance of the
population if they govern in the interests of that population
- Sometimes described as a principle of good governance
- Governing in the public interest
- Governing transparently
- Respecting the dignity, rights and interests of individuals
- Making decisions in a fair way
- Human rights
- Governing competently
- To pursue the aim of good governance, the institutions of government must explain their actions so that
someone can scrutinize those actions, ask questions and pass judgement
- Depending on the issue, who is being scrutinised and by whom will vary.
Political Accountability
- Parliament to the electorate
- General elections - every five years
- The executive to parliament
- Individual ministerial responsibility
- Not necessarily efficient for resolving individual issues
Legal and Administrative Accountability of the Executive
- Judicial Review - challenges the legality of the decision making process (note; human rights act 1998)
- Tribunals - can challenge individual decisions of government before a specialist judicial body.
- Ombudsman - investigates injustice that may not necessarily be unlawful
- Public inquiries - investigate matters of public concern
Introduction
Two types of judicial review
- Review of legislative action
Us style declaration that an act of congress is unconstitutional
Parliamentary sovereignty prevents this in the UK
Human rights act 1998, S4 “declarations of incompatibility”?
- Parliamentary sovereignty is still maintained, S4 (6) (a), “does not affect the validity, continuing
operation or enforcement of the provision in respect to which it is given.”
Review of Executive action
- What is this? EXAMPLE….
Parliament passes law…
The minimal alcohol price act 2014; “local councils, in order to prevent binge drinking, will implement
reasonable minimal prices on alcoholic drinks”
Now imagine the range of options open to the local council
- Southampton - charge £1 on every unit
- Portsmouth - Charge £1 on every 250ml of drink
- Winchester - Charge £3 on first unit and only £1 on every unit after
- Basingstoke - only put a charge of 50p per unit on common people drinks
➤ Any government dept, local authority or agency exercising the powers of a governmental
nature must do so LAWFULLY
➤ Judicial review ensures that such activities are carried out within the confines of the
power conferred
➤ It is concerned with LEGALITY not merit
Legality NOT “Merit”
- Big debate over airport capacity in the SOuth east
, - Government has to choose where a new runway should be built
If the government chooses Heathrow, you could not go to court and say that
Gatwick would have been a better choice.
➤ That is a policy decision for government not the courts to take.
➤ Laws LJ, ‘does not ask itself the question, “is this decision right or wrong?”
Judicial review has nothing to do with “which view is the better one”.
R v Somerset County Council, ex p Fewings [1995] 1 All ER 513
➤ Courts and judges know little about the airline industry and airports, and courts do
not investigate such matters but decide on evidence received.
➤ But the courts do know about the law surrounding the decision
➤ So the Minister making the decision would have to
➤ give a fair hearing to interested parties,
➤ i.e. neighbours, the airports, airlines, local authorities.
➤ Would have to avoid legally irrelevant considerations
➤ i.e. would choosing Gatwick make it easier for him to go to his holiday home in France?
➤ Not use the power to choose for an improper purpose
➤ i.e. to boost the government’s popularity in a particular constituency)
➤ Comply with any specific legal requirements,
➤ i.e. to consider the environmental impact;
Judicial Review and the constitution
- Judicial review is important because it makes public authorities subject to the law. Ordinary citizens can
challenge decisions of public authorities, demanding that they explain their actions
- It is ensuring that the intention of parliament expressed in acts of parliament is being complied with
- The minimal alcohol price act 2014 - “Local Councils, in order to prevent binge drinking, will implement
reasonable minimal prices on alcoholic drinks.”
- The courts will interpret what this provision means and councils will have to act within the scope of that
provision
Ultra Vires Theory
- This has given rise to the ultra vires theory
- The authority of the courts in judicial review stems from ensuring the public authorities act within the
intention of parliament
- That public authorities act within the powers they have been given by law (intra vires)
- If public authorities act outside their powers, they are acting beyond their powers (ultra vires) and the
courts can intervene.
- Arguably this supports parliamentary sovereignty and the rule of law
- If a council used this power to impose minimum prices on non alcoholic drinks that would be illegal
- There are however problems with the ultra vires approach
- Courts review non statutory powers
- The principles of judicial review have developed considerably over the years with little indication from
parliament.
The common law theory
- Others argue that judicial reviews stems from rules developed by judges under the common law, rather
than the courts acting on the intention of parliament
- The common law theory states that when parliament gives power to a public authority, the common law
takes away the power to exercise that power unfairly.
- For example, with alcohol pricing, a council only puts minimum prices on some alcoholic drinks
because a particular brand is produced in the local area.
Conclusion
- Essentially parliament intends the power it created to be exercised in line with the rule of law, and it is
for the courts to determine what this means.
Accountability
- Within democracy, the institutions of government are only going to gain the acceptance of the
population if they govern in the interests of that population
- Sometimes described as a principle of good governance
- Governing in the public interest
- Governing transparently
- Respecting the dignity, rights and interests of individuals
- Making decisions in a fair way
- Human rights
- Governing competently
- To pursue the aim of good governance, the institutions of government must explain their actions so that
someone can scrutinize those actions, ask questions and pass judgement
- Depending on the issue, who is being scrutinised and by whom will vary.
Political Accountability
- Parliament to the electorate
- General elections - every five years
- The executive to parliament
- Individual ministerial responsibility
- Not necessarily efficient for resolving individual issues
Legal and Administrative Accountability of the Executive
- Judicial Review - challenges the legality of the decision making process (note; human rights act 1998)
- Tribunals - can challenge individual decisions of government before a specialist judicial body.
- Ombudsman - investigates injustice that may not necessarily be unlawful
- Public inquiries - investigate matters of public concern
Introduction
Two types of judicial review
- Review of legislative action
Us style declaration that an act of congress is unconstitutional
Parliamentary sovereignty prevents this in the UK
Human rights act 1998, S4 “declarations of incompatibility”?
- Parliamentary sovereignty is still maintained, S4 (6) (a), “does not affect the validity, continuing
operation or enforcement of the provision in respect to which it is given.”
Review of Executive action
- What is this? EXAMPLE….
Parliament passes law…
The minimal alcohol price act 2014; “local councils, in order to prevent binge drinking, will implement
reasonable minimal prices on alcoholic drinks”
Now imagine the range of options open to the local council
- Southampton - charge £1 on every unit
- Portsmouth - Charge £1 on every 250ml of drink
- Winchester - Charge £3 on first unit and only £1 on every unit after
- Basingstoke - only put a charge of 50p per unit on common people drinks
➤ Any government dept, local authority or agency exercising the powers of a governmental
nature must do so LAWFULLY
➤ Judicial review ensures that such activities are carried out within the confines of the
power conferred
➤ It is concerned with LEGALITY not merit
Legality NOT “Merit”
- Big debate over airport capacity in the SOuth east
, - Government has to choose where a new runway should be built
If the government chooses Heathrow, you could not go to court and say that
Gatwick would have been a better choice.
➤ That is a policy decision for government not the courts to take.
➤ Laws LJ, ‘does not ask itself the question, “is this decision right or wrong?”
Judicial review has nothing to do with “which view is the better one”.
R v Somerset County Council, ex p Fewings [1995] 1 All ER 513
➤ Courts and judges know little about the airline industry and airports, and courts do
not investigate such matters but decide on evidence received.
➤ But the courts do know about the law surrounding the decision
➤ So the Minister making the decision would have to
➤ give a fair hearing to interested parties,
➤ i.e. neighbours, the airports, airlines, local authorities.
➤ Would have to avoid legally irrelevant considerations
➤ i.e. would choosing Gatwick make it easier for him to go to his holiday home in France?
➤ Not use the power to choose for an improper purpose
➤ i.e. to boost the government’s popularity in a particular constituency)
➤ Comply with any specific legal requirements,
➤ i.e. to consider the environmental impact;
Judicial Review and the constitution
- Judicial review is important because it makes public authorities subject to the law. Ordinary citizens can
challenge decisions of public authorities, demanding that they explain their actions
- It is ensuring that the intention of parliament expressed in acts of parliament is being complied with
- The minimal alcohol price act 2014 - “Local Councils, in order to prevent binge drinking, will implement
reasonable minimal prices on alcoholic drinks.”
- The courts will interpret what this provision means and councils will have to act within the scope of that
provision
Ultra Vires Theory
- This has given rise to the ultra vires theory
- The authority of the courts in judicial review stems from ensuring the public authorities act within the
intention of parliament
- That public authorities act within the powers they have been given by law (intra vires)
- If public authorities act outside their powers, they are acting beyond their powers (ultra vires) and the
courts can intervene.
- Arguably this supports parliamentary sovereignty and the rule of law
- If a council used this power to impose minimum prices on non alcoholic drinks that would be illegal
- There are however problems with the ultra vires approach
- Courts review non statutory powers
- The principles of judicial review have developed considerably over the years with little indication from
parliament.
The common law theory
- Others argue that judicial reviews stems from rules developed by judges under the common law, rather
than the courts acting on the intention of parliament
- The common law theory states that when parliament gives power to a public authority, the common law
takes away the power to exercise that power unfairly.
- For example, with alcohol pricing, a council only puts minimum prices on some alcoholic drinks
because a particular brand is produced in the local area.
Conclusion
- Essentially parliament intends the power it created to be exercised in line with the rule of law, and it is
for the courts to determine what this means.
