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  • Level: GCSE
  • Subject: Law
  • Word count: 2781

Give an analysis of the case law to show the grounds upon which an application for review can be made.

Extracts from this document...

Introduction

"There is no prescribed constitutional relationship between the courts and the executive, but the judges assert their inherent power, derived from the rule of law, to review executive actions" Madgwick and Woodhouse, "The law and politics of the Constitution," page 107. Give an analysis of the case law to show the grounds upon which an application for review can be made. The question starts off by giving us an element of the separation of powers when it says that there is no prescribed constitutional relationship between the courts and the executives. The concept of separation of powers propounded by Montesquieu, the French political philosopher, has three main criteria: (i) There are three main classes of governmental functions: the legislature, the executive and the judicial. (ii) There are (or should be) three main organs of government in a state: the Legislature, the Executive and the Judiciary. (iii) To concentrate more than one class of function in any one person or organ of government is a threat to individual liberty. For example, the Executives should not be allowed to make laws or adjudicate on alleged breaches of the law; it should be confined to the executive functions of making and applying policy and general administration. The third proposition, which is said to be the most extreme and doctrinaire, is what the question in hand seems to overrule using the rule of law, whereby judges are said to use it to assert their inherent power to review executive actions. ...read more.

Middle

When Parliament prescribes the manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity not effecting the validity of what has been done. Judges have often stressed the impracticability of specifying exact rules for the assignment of a procedural provision to the appropriate category. The whole scope and purpose of the enactment must be considered, and one must assess, "the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act."4 The case that would be used for our analysis would be Ridge v Baldwin And Others 5. The Municipal Corporations Act 1882 provided by Section 191: "(4) The Watch Committee......may at any time dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit of the same". The Police Act 1919 provided by Section 4(1); "It shall be lawful for the secretary of state to make regulations as to the....conditions of service of members of all police forces within England and Wales, and every police authority shall comply with the regulations so made". ...read more.

Conclusion

I, however, do not regard this as a matter of concern. It is no more than an indication that judicial review has been working well during a period when the other restraints on the executive were not as great as ideally they should be". Here, Lord Woolfe goes on to describe a situation where it is felt that the judiciary should intervene in the working of the executive. He says, "It was a period during which both local government and the opposition to the executive in Parliament was weak and when power had become increasingly centralised. It was also a period of frenetic activity by the government of the day. The Government was taking policy decision after decision, which had significant implications for the justice system and the vulnerable section of the community whose only source of protection are the courts. Examples are provided by the decisions adversely affecting prisoners11 and asylum seekers.12 Thus judicial review presents a constitutional paradox, representing, on the one hand, a check on the executive - arguably infringing the doctrine of separation of powers - and on the other hand, keeping the executive within its legal powers thus putting the sovereignty of Parliament and rule of law aside. Public press and criticism of the judiciary's role in keeping the executive under check led the former Lord Chief Justice, Lord Taylor of Gosforth, publicly defending the role of judges by saying; ".....nothing could be further from the truth. Indeed their (the judges') aim and function is quite the reverse. ...read more.

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