Accountancy with Law: Principles of Public Law

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Alan Henderson                Accountancy with Law 2003/2004

Alan Henderson

Accountancy with Law

Principles of Public Law

Assignment No. 2

Module Leader: S.Connolly

Word Limit: 1,500

Word Count: 1, 520

In a state such as the UK, which boasts no codified or written constitution, courts play a vital role in protecting the public from abuse of power, thus Judicial Review is a major part of the law to protect the public and make sure that bodies act within the powers granted to them and represents the means by which the courts control the exercise of governmental power. By definition Judicial Review “…is the law relating to public administration. It is concerned with the legal forms and constitutional status of public authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationships with one another, with the public and with their employees; and with the wide range of institutions, both internal and external to themselves, which seek varied ways to control their activities.” Foulkes ch.1, pg.1. It has developed to ensure that public bodies, which exercise law-making power, are kept within the confines of the power conferred. It deals with the legal framework and is a very wide spread subject, the Executive power often involves using discretion with the courts not being concerned with the merits and aims of government but instead with manner in which it is put into affect. For example for the issue of ‘homeless’ there will be a set definition but the courts can chose to interoperate this word. This is re-enforced by Lord Diplock, Secretary of State –V- Tameside B.C. (1976)”The whole nature of administrative discretion is that it involves more than one course of conduct about which there is room for reasonable men to hold differing opinions as to which is preferred”. Applications for Judicial Review can only proceed against public bodies or authorities; established through case law and the process cannot be used when a private law remedy is the proper course. Per Diplock claimed that the grounds of judicial review fell under three headings each to determine if the courts have acted Ultra Vires or in fact Intra Vires. These three headings were Illegality, Irrationality and Procedural impropriety. Illegality deals with ‘doing the wrong’, where a public body or official can only act within the powers granted to them by statute unlike in the case of Vine –V- National Dock Board (1957) where the National Dock Board set up a committee to deal with situations and discipline of employees. As a result this committee fired Mr. Vine but it was held in court to be Ultra Vires and the Dock did not have the authority to delegate these powers. Irrationality deals with courts acting unreasonable or abusing the power and comes closest to consideration of the decision’s merits. Thirdly Procedural Impropriety deals with things that are carried out in the wrong way and not to procedure, and fall under two aspects: failure to observe procedures laid down in the legislation and failure to observe the basic rules of natural justice. Judicial Review is concerned with the legality of the decision made and not the merits of the decisions, applicants for judicial review must first seek for the permission of the courts within three months “after the grounds for the claim first arose”. This allows the courts to filter out cases that are outside its jurisdiction assuming the applicant is a person whose “personal rights have been affected or a group interested on their own behalf or on behalf of society generally”.

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In the case of R –V- Norfolk County Council Social Services (1989) we see that M. had sufficient grounds to proceed with Judicial Review with reference to his name being placed on the Child Abuse Register by Norfolk County Council Social Services for numerous reasons. M. is risking loosing his lively hood in this case and as a result is entitled to expect a high standard of fairness in his case, the Council have acted irrationally and followed incorrect procedures, their decision, as a result, should be quashed and M’s name removed from the register. In the first instance the ...

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