Judicial Review

Judicial Review

Principle is that a judicial body can hold acts of public bodies to be unlawful

It is linked to the separation of powers

Masterman and Murray: “A mechanism by which those affected by government decisions can challenge the validity of those decisions in court.”

UK Courts and Tribunals Judiciary: “JRs are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”

Examples and forms of judicial review

Human Rights Act cases

• JR of public authorities, and declarations of incompatibility of Acts of Parliament

• A et Al. C SSHD [2004] UKHL 56 - indefinite detention with neither trial nor deportation contrary to Art 14 ECHR because it has discriminated against foreign suspected terrorists - meant that parts of the Anti-terror ism Crime and Security Act 2001 were unworkable

Relationship o Parliament and Executive (Protecting Parliament)

• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 - withdrawal from EU required an Act of Parliament, not an executive action

• R (Miller) v The Prime Minister [2019] UKSC 41 - prerogative of prorogation of Parliament cannot be used to impede its proper functioning without justification

Competence of devolved legislatures

• AXA General Insurance [2011] UKSC 46 - case involving question of Scottish parliament in relation o Westminster and other devolved legislatures

Public decisions and ctions made that impact on individuals

• Governmental decisions on e.g. visa applications

• Decisions by local councils to e.g. grant licences to businesses

• Actions taken by bodies with public functions e.g. hospitals, prisons, educational institutions

JR v Private law/Criminal law

• JR is specific legal mechanism for holding public bodies account, that aderes to a different set of rules and procedures - it has a different purpose to criminal and private law, therefore JR has a different legal framework

Specific differences to consider:

• Amenability - Which bodies are subject to the legal obligation of judicial review

• Standing - Who can bring the claim to judicial review

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