Judicial Review

Topics: Law, Rulemaking, Common law Pages: 5 (1626 words) Published: March 17, 2011
The area of law in which this question is concerned is judicial review. Judicial review can be defined as ‘… the means by which the Courts control the exercise of Governmental powers.’ The Courts will look at the way in which a decision was made, not the decision itself, to find out if any powers have been abused. Judicial review is an application to the Courts to assess an action or decision made by a public body on a point of public law. A particular decision may be found to be in breach of natural justice or have been made ultra vires, that is, beyond the scope of the powers. The case of O’Reilly v Mackman shows the general rule that when claiming against a public body, judicial review should be used. Lord Diplock described this as an ‘exclusivity principle’. The use of this principle has been criticised by academics due to the strictness of it, and has been referred to as a ‘serious setback in administrative law’ . The courts have since tried to use a broader approach in relation to the use of judicial review. In Roy v Kensington and Chelsea and Westminster FPC , the House of Lords held that judicial review does not have to be used where a private law right involves addressing a public law matter. This decision was supported in Mercury Communications Ltd v DG of Telecommunications . This illustrates the Courts taking a more flexible approach to that used in O’Reilly and focuses more on stopping an abuse of power than strictly distinguishing between the routes available in public and private law. Another exception is the use of collateral challenge. This allows judicial review to be used in a civil or criminal case as a defence, and it often involves a particular decision being made ultra vires. This can be seen in Wandsworth LBC v Winder and in the later case of Boddington v British Transport Police . A public body normally derives its powers from the common law or Statute, but it has been found that many public bodies don’t relate in any way to the government. Therefore the courts look at the nature of the power being used to distinguish public and private bodies. In R v City Panel on Takeovers and Mergers ex parte Datafin the Courts looked at the panel in a way that questioned whether or not the Government would have had to make a body of similar functions if the Panel did not exist. They decided that they would and therefore it was the nature of the power which declared it a public body. However, in R v Disciplinary Committee of the Jockey Club ex parte Aga Khan the Courts decided that it was a private matter which meant that the nature of the functions exercised by the Club could not be subject to judicial review. Before leave for judicial review is granted, the applicant must meet two factors. The case must be one which can be answered (prima facie) and the claimant must have ‘sufficient interest’ in the case which gives him the right to bring it to Court (locus standi). These elements are in place to stop ‘vexation litigants’ wasting the Courts time. In R v HM Inspectorate of Pollution, ex parte Greenpeace (No.2) it was held that Greenpeace had a sufficient interest in the issue even though they weren’t directly affected by it. For an applicant to rely on judicial review at least one of three possible grounds must be met; illegality, irrationality, and procedural impropriety. These grounds were laid down by Lord Diplock in CCSU v Minister for Civil Service (GCHQ case). Illegality was defined in the GCHQ case as ‘…the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.’ By this he meant that the Statute or common law from which the power is derived must be followed but not be abused. If the body goes beyond the scope of powers given to him then he is acting ultra vires. In Attorney General v Fulham Corporation it was found that the corporation had acted ultra vires as they had used the power for a purpose that had not been granted. When...
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