Judicial review and HR

Purpose of Judicial Review

✔ Ensures legality: Holds the Executive & public bodies accountable.
✔ Checks power: Balances separation of powers and upholds Rule of Law.
✔ Facilitates good governance: Decisions must be lawful, rational, and fair.

Constitutional Basis

📜 Rule of Law: Government must act lawfully, courts ensure compliance.
📌 Parliamentary Sovereignty: Courts uphold Parliament’s will (cannot override legislation).
📝 Common Law: Judicial review is a long-standing tradition of the courts.
⚖ Human Rights: Protected by Article 6(1) ECHR & s7 HRA 1998 (right to a fair trial).

Legal Framework

📌 Governed by:
✔ Senior Courts Act 1981
✔ Civil Procedure Rules Part 54 (since 1999)

⚖ Landmark Cases:
✔ O'Reilly v Mackman (1983): Judicial Review must be used exclusively for public law.
✔ GCHQ Case (1985): Established key grounds for JR.

🔹 Principle: Public law disputes must go through Judicial Review

Procedural Requirements:

✔ Standing (Locus Standi): Claimant must be directly affected.
✔ Amenability to JR: Must challenge a public body’s decision.
✔ Time Limits: Claims must be filed promptly (usually within 3 months)

Grounds for Review:

✔ Illegality (Ultra Vires): Decision-maker exceeds legal powers.
✔ Irrationality (Wednesbury unreasonableness): Decision is so unreasonable no sensible person would make it.
✔ Procedural Impropriety: Failure to follow fair process.
✔ Proportionality: Stronger focus under Human Rights cases.

Remedies Available

✔ Quashing Order: Cancels decision.
✔ Prohibiting Order: Prevents unlawful action.
✔ Mandatory Order: Requires an action to be taken.
✔ Damages: Only available in private law cases.

GCHQ Case (1985)

✔ Facts:

• The UK government banned trade union membership at the Government Communications Headquarters (GCHQ) using royal prerogative.

• Trade unions challenged this as procedurally unfair.

📌 Legal Principles Established:
✔ Judicial review applies to prerogative powers (if they affect individual rights).
✔ Grounds for review:

• Illegality: Prerogative powers must be exercised lawfully.

• Irrationality (Wednesbury unreasonableness): Government actions must be reasonable.

• Procedural impropriety: Fair procedures must be followed.
  ✔ BUT: Courts recognized national security concerns may limit review.

📝 Impact: Major case confirming executive decisions (even prerogative-based) can be judicially reviewed.

O'Reilly v Mackman (1983)

Key Issue: Judicial review must be used exclusively for public law cases
✔ Facts:

• Prisoners challenged disciplinary decisions affecting their rights.

• They tried to bring the case under private law, instead of using judicial review.

📌 Legal Principles Established:
✔ Public law cases must go through judicial review, not private law claims.
✔ Prevents abuse of process—ensures proper procedure is followed for government decisions.

📝 Impact: Confirmed judicial review as the exclusive route for challenging public bodies.

Greenpeace (No. 2) Case

Key Issue: Standing in Judicial Review (Locus Standi)
✔ Facts:

• Greenpeace challenged the government’s decision to allow nuclear testing at Sellafield.

• Greenpeace was not personally affected, but argued public interest required review.

📌 Legal Principles Established:
✔ Expands standing (locus standi)—groups can challenge decisions if they have sufficient interest.
✔ Encourages public interest litigation to hold government accountable.

📝 Impact: Made JR more accessible for NGOs & pressure groups

Daly (2001)

✔ Issue: Home Office policy allowed prison officers to search legal correspondence without prisoners being present.
✔ Legal Principle:

• Strengthened proportionality as a standard of review in human rights cases.

• Courts must balance state interests vs. individual rights (Article 8 ECHR – Right to Privacy).

Bancoult (2008)

✔ Issue: Government expelled Chagos Islanders from their homeland using royal prerogative.
✔ Legal Principle:

• Courts can review prerogative powers, but executive discretion remains broad.

• Human rights vs. executive control—balance is complex.

Begum 2021

✔ Issue: Shamima Begum challenged the government’s decision to strip her UK citizenship over national security concerns.
✔ Legal Principle:

• Right to a fair trial (Article 6 ECHR) vs. National Security—courts ruled government had discretion, but human rights concerns remained.

Legal Framework for Human Rights in the UK

📜 Key Sources:
✔ European Convention on Human Rights (ECHR)—incorporated into UK law by the Human Rights Act 1998 (HRA).
✔ Common Law Protections—judicial precedents safeguarding rights.
✔ International Human Rights Law—includes treaties the UK has ratified.

📝 Impact:

• Courts must interpret laws consistently with ECHR under Section 3 HRA.

• Public bodies (e.g., government departments, police) must act in accordance with human rights.

Role of Judicial Review in Human Rights Cases

⚖ Judicial Review ensures:
✔ Government actions comply with human rights.
✔ Parliamentary sovereignty is balanced by rights protections.
✔ Fair processes are followed in public decision-making.

📝 Key Mechanism:

• Proportionality Test: Used by courts to weigh individual rights vs. government interests (see Daly 2001).

Human Rights and Parliamentary Sovereignty

📜 Balancing Human Rights & Parliament’s Authority:
✔ Section 4 HRA 1998: Courts can issue declarations of incompatibility, meaning a law conflicts with ECHR, but Parliament decides whether to change it.
✔ Parliamentary Sovereignty remains intact—courts cannot override laws directly.

📝 Impact:

• Human rights constrain executive power, but Parliament remains supreme in deciding legislative changes.