Judicial Review & Procedure
Role of judicial interference into governmental actions
- Parliamentary sovereignty
o ‘In the field of statute law, the judge must be obedient to the will of
parliament as expressed in its enactments. The judge’s duty is to interpret &
apply the law, not to change it to meet the judge’s idea of what justice
requires’
Lord scarman
- Rule of law
o ‘Unless there’s the clearest provision to the contrary, parliament must be
presumed not to legislate contrary to the rule of law. The rule of law enforces
minimum standards of fairness, both substantive & procedural’
Lord steyn
- Separation of powers
o ‘Parliament makes the laws; the judiciary interpret them’
Lord Diplock
Discretionary powers
- Judicial review concerns the legality of decisions, acts of failures to act made by
public bodies that are empowered to make such decisions by law
o Such powers define the jurisdiction of the decision maker
- The powers are frequently discretionary in nature
o The decision maker has a choice as to when & how to exercise the power
- The extent & nature of the discretion will be determined by the contents of the
enabling statute that will define the scope of the power
- Power can be vested in public bodies expressly or by necessary implication
- One must initially look to the legal source of the power to determine whether the
decision made is unlawful & therefore potentially vulnerable to judicial review
Traditional perspective – ultra vires model
- The fundamental principle – the courts will intervene to ensure that the powers of
decision-making bodies are exercised lawfully
- In all cases the intervention is based on the proposition that such powers have been
granted on the decision maker on the underlying assumption that the powers are to
be exercised only within the jurisdiction granted, in accordance with fair procedures
- If the decision maker exercises their powers outside of the jurisdiction granted, in a
manner which is procedurally irregular, they are acting ultra vires his powers &
therefore unlawfully
Decision making process
- A decision can be regarded as a process with a beginning, end & a route from one to
the other
- The beginning raises the issue as to whether the decision maker has the authority to
make the decision
- The route from the beginning to the end raises issues about whether the inputs are
acceptable in accordance with the terms of the enabling power & whether the
process was procedurally fair
Grounds
- There are different ways of classifying the grounds
o Illegality
Role of judicial interference into governmental actions
- Parliamentary sovereignty
o ‘In the field of statute law, the judge must be obedient to the will of
parliament as expressed in its enactments. The judge’s duty is to interpret &
apply the law, not to change it to meet the judge’s idea of what justice
requires’
Lord scarman
- Rule of law
o ‘Unless there’s the clearest provision to the contrary, parliament must be
presumed not to legislate contrary to the rule of law. The rule of law enforces
minimum standards of fairness, both substantive & procedural’
Lord steyn
- Separation of powers
o ‘Parliament makes the laws; the judiciary interpret them’
Lord Diplock
Discretionary powers
- Judicial review concerns the legality of decisions, acts of failures to act made by
public bodies that are empowered to make such decisions by law
o Such powers define the jurisdiction of the decision maker
- The powers are frequently discretionary in nature
o The decision maker has a choice as to when & how to exercise the power
- The extent & nature of the discretion will be determined by the contents of the
enabling statute that will define the scope of the power
- Power can be vested in public bodies expressly or by necessary implication
- One must initially look to the legal source of the power to determine whether the
decision made is unlawful & therefore potentially vulnerable to judicial review
Traditional perspective – ultra vires model
- The fundamental principle – the courts will intervene to ensure that the powers of
decision-making bodies are exercised lawfully
- In all cases the intervention is based on the proposition that such powers have been
granted on the decision maker on the underlying assumption that the powers are to
be exercised only within the jurisdiction granted, in accordance with fair procedures
- If the decision maker exercises their powers outside of the jurisdiction granted, in a
manner which is procedurally irregular, they are acting ultra vires his powers &
therefore unlawfully
Decision making process
- A decision can be regarded as a process with a beginning, end & a route from one to
the other
- The beginning raises the issue as to whether the decision maker has the authority to
make the decision
- The route from the beginning to the end raises issues about whether the inputs are
acceptable in accordance with the terms of the enabling power & whether the
process was procedurally fair
Grounds
- There are different ways of classifying the grounds
o Illegality
