Week 17 Public: The Foundations of Judicial Review

What are public bodies only allowed to do?

Only what they have legal power to do.

Can public bodies exceed or abuse their powers?

No, they must act within their legal powers.

Do public bodies have inherent rights?

No.

What principle lies at the heart of these requirements?

The rule of law.

What was the principle established in Entick v Carrington (1765)?

Officials must have specific legal authority to search private property.

Where do most public bodies get their powers from?

Acts of Parliament.

Basic question when statutory power is involved?

Does statute permit the decision/action taken?

What about prerogative powers?

Check if the power exists and if it was lawfully exercised.

Apart from statute and prerogative, what must public bodies comply with?

Common law, including procedural fairness (natural justice).

What is Judicial Review (JR)?

A High Court procedure to challenge the legality of public body actions.

Is JR created by statute?

No, it's rooted in common law.

Are rights to appeal based on statute?

Yes.

Who developed JR principles?

Judges.

Why is it called "judicial review"?

Courts "review" actions to check lawfulness.

What major constitutional principle does JR uphold?

The rule of law.

What does JR review?

The legality of public actions, including delegated legislation.

Can UK JR directly challenge primary legislation?

no.

Can Scottish Parliament legislation be reviewed?

Yes, for exceeding devolved powers.

What about compatibility under the Human Rights Act 1998?

Courts can declare incompatibility but not invalidate legislation.

When is JR used?

As a last resort when no other remedy exists.

What does JR focus on: legality or merits?

Legality.

What did the High Court say in Rwanda [2022] EWHC 3230 (Admin)?

Courts ensure public bodies act within legal limits; they don't make political, social, or economic decisions.

What remedies can JR provide?

Declaration, quashing order, injunction, mandating order.

Are JR remedies automatic?

No, they are discretionary.

Are damages often awarded in JR?

Rarely.

Is JR costly?

Yes, losing claimants may pay costs; legal aid is limited.

Where do you file a JR claim?

Administrative Court (King’s Bench Division).

What must a claimant show to get permission?

Sufficient interest, arguable case, and exhaustion of remedies.

What is the time limit for applying for JR?

Promptly, normally within 3 months.

Is JR suited for disputes of fact?

No, cross-examination is exceptional.

What is increasingly important in JR procedures?

Duty of candour.

How has JR changed since the 1960s?

Courts became more willing to review government actions.

What factors increased JR’s importance?

Influence of EU law, Human Rights Act 1998, major constitutional cases (e.g., Miller 1 & 2).

Has there been a massive quantitative growth in JR?

Yes, especially in immigration cases; non-immigration cases stayed steady.

What is the main debate about JR's legitimacy?

Whether it should be based on Parliament’s will or deeper constitutional/common law values.

What are two main justifications for JR?

(1) Serving Parliament’s intention, (2) Protecting fundamental rights and rule of law.

What is the pluralistic approach to JR?

JR’s role varies depending on the context; it interacts flexibly with other parts of the system.

What are the three reasons governments claim justify limiting JR?

Massive growth, interference with good government, judicial overreach.

Are these claims supported?

Empirical research often challenges them.

What was the Conservative Party's 2019 JR promise?

Protect rights but prevent political abuse and needless delays.

What was IRAL’s position on reform?

Opposed major restrictions; recommended limited reforms.

What key changes came from the Judicial Review and Courts Act 2022?

Introduced suspended quashing orders and ended Cart JRs.