GDL: Flashcards for the Justifications of Judicial Review

ANALYSING THE PROBLEM What is the power given by the legislation  Who can exercise the power? When does the power arise? What is the purpose of the power How should power be operated? How has the power been operated?

JUSTIFICATIONS OF JUDICIAL REVIEW Traditional: P. Supremacy upholds will of Parliament P granted public bodies power  JR ensures those bodies not exceed powers granted illegality Separation of Powers Checks and balances ensures Exec stays within the law Legality - of decision, not the merits of the decision, proportionality  Non-justiciable prerogative powers No higher power can control legislation, JR is required Rule of Law Dicey: equality before law, absence of arbitrary power, genuine discretion of powers (fettering of discretion) Bingham: human rights, JR on human rights grounds

JUSTIFICATIONS OF JUDICIAL REVIEW Critique of Traditional: Parliamentary Supremacy Intention of Parliament cannot be discerned, and is too varied to know for sure It is the will of the executive not Parliament (A: Pepper v Hart) Circumvention of Ouster Clauses (A: Anisminic) Rules of Natural Justice were not intended by Parliament, judge made? Royal Prerogative  Parliament did not confer powers Human Rights JR concerning human rights goes beyond Parliament’s intention? HRA 1998

JUSTIFICATIONS OF JUDICIAL REVIEW Academic: Ultra Vires: based on p.supremacy (Forsyth & Elliott) Common Law Theory: judges developed JR Principles, rules of natural justice Modified Ultra Vires theory imputes general intention to Parliament that decision makers should follow the Rule of Law (Jowell)

Sources of Constitution Constitutional Conventions Collective Cabinet Responsibility:  A: AG v Jonathan Cape  Individual Ministerial Responsibility  Conventions relating the The Crown: Royal Assent Appointment of Ministers Conventions and S.Power Ministers do not criticise judicial information Judiciary not involved in party politics

Sources of Constitution Constitutional Conventions and theCourts Westminister Parl repeals the Isle of Man Theft Act 1981 Breached convention A: Madzimbamuto v Lardner Burke SoS to procure a factory No reference in act to civil services Carltona Principle-> provides an exception to delegated legislation, illegality Minister resigns from Cabinet after rowing wishes to publish a report of Cabinet meeting this is not permitted conventionally  A: A-G v Jonathan Cape Ltd courts cannot directly enforce convention

Sources of Constitution Observation of Constitutional Conventions to ensure the smooth operation of the constitution  legal powers of Monarch operated by elected Government  not be unelected Monarch Political Repercussions from breach refusal to provide royal assent  Personal repercussions from breach Ensure government and its ministers can be held accountable to Parliament  enhance the separation of powers