• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Essay on the function of Judicial Review

Extracts from this document...

Introduction

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 made1. 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. ...read more.

Middle

As for the normative and expository element, generally it seems clear that so long as authorities act honestly and reasonably then no decision of theirs would be deemed irrational. So this role is upheld in irrationality although I feel the primary purpose for judicial review on grounds of irrationality is to keep the powers of government within legal bounds. Judicial intervention due to the substance of a decision merely in order to promote good governance does not seem to give the action sufficient justification. The last ground in Lord Diplock's formulation is procedural impropriety. When an authority fails to follow a mandatory procedure (as happened in Bradbury v Enfield LBC (1967)) their decision will be invalid. Also, one who is affected by a decision has a right to a fair hearing - decision-makers must allow for a party to make representations in order to act fairly (Ridge v Baldwin (1964)) and they must also act impartially. Furthermore, reasons for a decision have to be given to the person affected. Failure to do so is likely to result in the decision being invalid (R v Secretary of State for the Home Department, ex parte Doody (1993)). This ground seems to give a little more weight to redressing wronged citizens. While the requirements to give reasons for a decision and to allow a fair hearing do help to keep an authority in check, I think the amjor concern here is fairness to the citizen. ...read more.

Conclusion

It would probably increase the extent to which judicial review serves to public redress grievances by focusing less on the dry procedural grounds of review and onto a more substantive role. As for encouraging principles of good practice, the introduction of a proportionality principle may cloud the percieved boundaries of 'good governance', at least initially as there would be little precedent. However, even if proportionality was introduced the primary purpose of judicial review would remain to be the prevention of governmental abuse. In fact, a proportionality test would increase the amount of control the judiciary exerted over the government which could lead to a radical constitutional shift. Having looked at the grounds under which judicial review arises, the remedies which are available and what may lie ahead for the judicial review procedure, a conclusion can now be drawn. The emergining pattern which seemed to arise during this analysis is that the primary purpose of judicial review is indeed to control the exercise of governmental power and protect citizens from abuse. The normative and expository function of judicial review features in all areas but it tends to come as a beneficial side effect rather than as a purpose. Furthermore whilst the judges recognise that it is important to give citizens routes to appeal decisions and be remedied, this seems to be secondary to purpose of keeping the government under law. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Public Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

4 star(s)

A good essay. Excellent references to relevant case law.

4 Stars,

Marked by teacher Edward Smith 04/10/2013

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Public Law essays

  1. Marked by a teacher

    Discuss the relevance of the concept of the rule of law to current constitutional ...

    4 star(s)

    It is difficult to see how government would work without resorting to the use of wide discretionary powers. More emphasis is put on controlling discretionary power and methods of accountability then to completely eliminate discretionary power and find more successful ways to structure, confine and to check necessary discretionary powers, (Refer to case Padfield V Minister of Agriculture)14.

  2. We are presented with a question finding its roots in the Judicial Review area ...

    and 'procedural impropriety'. Depth Of Scrutiny It is true however that in some cases, some consideration of the 'merits' of a decision is required. When claims are brought against a public body acting beyond their powers under illegality, where irrelevant considerations are taken into account, (as in R v Port

  1. "The Royal Prerogative remains a significant source of constitutional law which is largely immune ...

    As stated above, the personal or 'reserve' powers of the Queen are not open to judicial review, however, the limitation here is that Parliament can enact a statute which could abolish or limit the personal powers of the Queen. It was formerly held that while the courts could determine the

  2. The genius of Sections 3 and 4 of the Human Rights Act 1998, is ...

    While such a declaration has no immediate effect, it allows for action under section 10. If no such action is taken, victims could apply to Strasbourg. Should the ECtHR find in favour of the defendant, it is likely that the UK government would feel pressured to amend the legislation.

  1. Public Law Assignment

    Lord Reid is quoted in Madzimbamuto v Lardner - Burke [1969] 1 AC 645,12 as asserting that though parliament would not be expected to act unconstitutionally, there is nothing to stop it from doing so and no court may challenge its actions.13 The Appellants in Jackson v Attorney General chose to disagree.

  2. the principles in the case of Ridge Vs Baldwin

    The importance of the application of the principles of natural justice rests not merely on insistence on due compliance with simple or elementary procedural rules, but also on the fact that a decision which has been arrived at in circumstance where the principles of natural justice have not been observed, will be void.

  1. Constitutional Conventions of the UK

    The meaning of a non-legal rule may change with times. Legal rules cannot be easily changed as it would involve a lengthy legal process such as overruling or legislation amending or revoking the legal rule. In this respect, conventions are more flexible in nature.

  2. Critically evaluate the ability of tribunals to deliver effective administrative justice.

    justice through the judicial process as not everyone can afford to go to court to have their case heard. Moreover, the idea of proportionate dispute resolution [5] is also more encouraged through tribunals and hence more appellants are likely to bring forth their challenges through this instrument to obtain justice.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work