The Concept Of Judicial Review And Its Functions

The court proceeding in which a judge review lawfulness of a decision or action taken by Public body is known as Judicial Review. The judicial review is sort of split in two main sections firstly bringing case for judicial review and secondly the actual grounds for judicial review. Bringing a case for Judicial Review there are four things that we must lookout. Secondary Legislation, Public Body, Locous standi and within the time limit.

The first point is that Judicial Review must be bought in relation to secondary legislation. Statutory instruments regulation, orders come in secondary Legislation The important thing to note here is that Primary legislation or act of parliaments cannot be challenged. In the light of the Constitutional idea of parliamentary Sovereignty, Parliament should be able to make any laws that it wants to, and those acts of parliament cannot challenge in the courts.

The body against Judicial Review had bought has to be Public. Ex p. Aga Khan (1993). Aga khan try to bring a case against the jockey club and the courts tuned around and said that a jockey club is a relationship between private individuals operating out of public sphere. So, Aga khan was not able to bring a case of Judicial Review and court said that these types of cases should be challenged in private law rather than public law. this case also brings a definition of the public body. So if the functions of the body are mainly public in nature then it can be considered a public body and if they are mainly private in nature then it isn’t.

Locous Standi comes down to the idea of standing and do you have the standing to bring a case and the main question here that the court asked is does the person have enough interest in the case. Lord Scarman in Fleet Sheet Casuals case (1982) said “ prevent abuse by busybodies, cranks and other mischief makers”. The person must have an actual interest in the case the decision or the regulation has to affect then in some way. The courts have expanded this out a little bit as we see in R v Inspector of Pollution, Ex p. Greenpeace Ltd (No 2) (1994). I this case Greenpeace a widely respected environmental pressure group try to bring a case and the inspector of police said they shouldn’t be allowed to because they are not local resident they are not actually directly affected by the pollution in a particular area. the court said because of the availability of funds and because of research that Greenpeace carried out in this area they are in much better position than the local residents to bring a case. And so the courts allow Greenpeace to bring a case for Judicial Review

Rule 54.5 of Civil Procedure Rules say that a case must not be bought later than 3 months after the grounds to make the claim first a row. As said the decision going against the person and that decision starts the clock and therefore a case to be bought within the 3 months of that decision being made.

Before moving on to Judicial review Grounds of Illegality. I would like to discuss the Ouster Clauses attempts to exclude the judicial review. In the case of Anisminic v Foreign Compensation Commission (1969) the lawyering question said that the decision shall not called into question in any court of law and the important thing here was the court said that we are not really challenging the final decision as such what the point of Judicial review is to look at the grounds for that decision in the first place and the way that decision came about not really looking at the final decision as such.

Illegality is one of three grounds for Judicial Review. The decision isn’t illegal but more Ultra Vires. Ultra Vires means outside of the power. It involves the Minister or a public body acting outside of their allocated powers. We can see in the case of Attorney General v Fulham Corporation (1921) that the rule, in this case, allowed local bodies to set up launderettes for the poor so that they can do their washing free and instead Fulham Corporation setup a commercial laundry where they charged members of the public. And the court said that they did not given the power to open a commercial laundry, so you have acted outside of your powers in this case.

Illegality can also consider Irrelevant Considerations. In R v Port Talbot Borough Council ex p. Jones (1988). The local council prioritized giving a council house to a local councilor on the basis that she need it because she was the councilor of that area and therefore she ought to live in that area. But this didn’t really take into account the considerations that the council would normally apply such as the need for a council house. are there children involved? things like that. So the fact is that the council was completely irrelevant when coming to the decision and so Irrelevant considerations do also play a part in whether a decision is Ultra Vires.

Unauthorized Delegation of powers can also come under the Ultra Vires illegality. In the case of Barnard v National Labor Board (1953) the National Labor Board was given the power to set up a disciplinary committee and they delegated that power to each individual local dock. The court said in this case that Labor Board has given the power to set up the disciplinary board they weren’t given the power to delegate that particular power even further down the chain.