Essay on the function of Judicial Review

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PUBLIC LAW ASSIGNMENT 2

MICHAEL ROBERTS

TUTOR GROUP L

ANNELIESE BLACKWOOD 


‘The primary purpose of judicial review … is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.’  

Discuss with reference to the common law grounds of review.

Judicial review is a process which is widely recognised to incorporate three functions or purposes. Firstly there is the function whereby citizens of the state who have been wronged and caused grievance by a public authority may be redressed. Secondly there is the ‘normative and expository’ role which encourages good governance through the promotion of fundamental principles. Finally, as the title statement propounds, there is the control of government element which helps to ensure that the power exerted by parliament and public authorities does not go unchecked, although judicial review is only concerned with the procedural correctness and legitimacy of such power and usually administrative or political checks are present to assess the merits of decisions made. The most effective way to explore these purposes would be to go through the three common law grounds of judicial review as set out by Diplock LJ in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (illegality, irrationality and procedural impropriety) plus the effects of the Human Rights Act 1998, the available remedies, and then to consider how the law may develop further in the future. This analysis should provide some good indications as to what the primary purpose of judicial review is.

The first ground set out in the CCSU case is illegality. This occurs when a power is exercised which is not granted by the law regulating that power. In Allingham v The Minister of Agriculture and Fisheries (1948) the Minister had a power to delegate the provisions of the authority to a committee. This committee then attempted to sub-delegate, but when the sub-delegated officer attempted to enforce his decision it was quashed on judicial review for being illegal. Only the Minister and the committee had powers to make such decisions. Sometimes courts will attempt to impute a power to sub-delegate and whether they will do this generally depends on the nature of the power and the character of the person (Vine v National Dock Labour Board (1957). Illegality can also be found in a number of other circumstances: where a body has used their power in a manner which was not intended by the authority granting that power, when certain preliminary conditions enabling use of the power are not met and where irrelevant considerations are taken into account (Padfield v Minister of Agriculture and Fihseries (1968)), or where there was simply a mistake of fact. While there are a number of presumptions and directions to judges when considering cases of illegality it is ultimately a decision which cannot be made through any mechanical process. It is clear that the judiciary are highly concerned with preventing abusive power and keeping public authorities within their legal bounds, although it is obviously very important to make clear and provide examples to authorities regarding what they can and cannot do with their statutory powers.

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The second ground is irrationality. This ground is often used interchangeably with Wednesbury Unreasonableness, after Associated Provincial Picture Houses Ltd v. Wednesbury Corp (1948) in which such unreasonableness was defined by Lord Greene as a decision “so unreasonable that no reasonable authority would have come to it”. This can be a tricky area for the judiciary because most would agree that it is not their place to judge the merits of a decision, which is what they appear to be doing in considering its reasonableness. However, while this is a problem theoretically, in practice the test has been successful on ...

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A good essay. Excellent references to relevant case law. 4 Stars,