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Application of Judicial Review in the UK

Question:

Discuss about the Journal of Law and Economics Role of the Judicial.

The process of judicial review can be defined as the process of court proceedings where the legitimacy of a previous decision given by a public body is reviewed by a judge of higher court of justice. The procedure of judicial review is applicable in cases where the previous decision taken by the public authority proves to be unlawful.

In this regard the seven steps involved in the process of judicial review can be emphasized.

  1. The process of judicial review is associated with the process of reviewing a decision that has been previously made by a public body in order to audit the legality of such decision.
  2. In this regard, it is noteworthy to mention here that the authorities exercising the functions of public law can be challenged. Therefore, it is worth noting that there is a thin boundary between the public bodies and the private authorities as the decisions of the public bodies are subjected to judicial review while the decisions made by the private sectors are not subjected to judicial review in general.
  3. In order to bring a claim for proceedings of judicial review it is important on the part of the parties involved to have sufficient interest in the matter.[1] However, in recent years the question involving sufficient interests has not been defined by the Courts. As a result of liberalization, the Courts were unwilling to dismiss an application on the ground of lack of standing. In this regard, pressure groups shall be treated as sufficient standing. Currently, reforms regarding the test of standing are initiated by the Government.
  4. In order to administer claim for judicial review, an application has to be made within three months from the date when the issue had at first taken place.[2] However, in recent years such remedy has been reduced to six weeks for the purpose of planning decisions. It has been expected that judicial review shall be treated as the remedy of last resort in cases where parties fail to apply alternative methods of dispute resolution.
  5. The grounds of judicial review are-
  • Illegality, which takes place when the public authority makes the law outside its powers.
  • Irrationality, when the public body passes an unreasonable decision.
  • Improper procedures, when the public authority fails to make decision according to the statutory procedures.
  • Breach of legitimate expectation, it occurs when the public authority is required to act in a particular way however, it fails to act according to the prescribed manner.
  1. In case of judicial review, the question involving remedies is often difficult to examine. The discretionary remedies available are-
  • Quashing order.
  • Prohibitory order.
  • Mandatory order.
  • Injunction
  1. It is noteworthy to mention here that judicial review has been affirmed as a remedy of last resort. In Glencore Energy UK Limited v Commissioners of HMRC[2017] EWHC 1476[3] it was held by the Administrative Court that the principle of judicial review is a remedy of last resort. It was held by the Court that judicial review shall be held as the remedy of last resort in cases where the methods of alternative dispute resolution fail to address the issues.

It is evident that the constitutional system of Britain is based on the principle of parliamentary sovereignty. According to A.V. Dicey, the decision passed by the Parliament cannot be challenged by the Court of law. Dicey stated that the Parliament is at the authority to make legislative amendments. The British courts are not vested with the power of declaring a parliamentary statute to be unconstitutional by setting it aside. The British constitution can review a decision taken by any executive or administrative body however, it cannot consider any constitutional authority of the Parliament to be null and void. Therefore, the process of judicial review can be rightly applied to decisions taken by the executive or the judicial however such process cannot be applied to the decision passed by the Parliament.

The rule of law occupies an integral position in the constitutional system of UK which is unwritten. The principle of rule of law has been applied to all conduct covering the officials of public bodies.[4] The rule of law states that no one is above the law, everyone is equal before the eyes of law, the laws have always been applied and legal reprisal is available through the courts. On the other hand, a claim for judicial review signifies a special quality which makes it distinct from other methods of litigation. In this regard, it is noteworthy to mention here that the procedural elements are covered by judicial review and without it there would have been an authoritarian state which has been supported by the rule of law from the very beginning.

In United Kingdom, the power of the Constitution is vested with the legislature, executive and the judiciary. According to the principle of separation of powers the power of interpreting the constitution is vested with the judiciary, the legislature is vested with the law making power while the executive acts effectively in enforcing the laws made by the legislature.[5] The process of judicial review is concerned with the power of making decision and in determining that whether the judiciary is acting independently. The separation of powers is not an unconditional feature of the British Constitution however; the concept of judicial review in the purview of separation of powers is working efficiently as it helped the judiciary in ensuring that the powers vested by the Parliament to the executive is not abused or exercised excessively.[6] It can be stated that the decision passed by the executive and the legislative can be reviewed by applying the process of judicial review. Judicial Review justified the decision of the legislature. It was observed in R v SSHD ex parte Anderson [2002][7] that there was a breach of Article 6 of the ECHR by the Home Secretary while exercising his judicial functions.

Parliamentary Sovereignty and Judicial Review

In this regard, it is worth mentioning here that the importance of judicial review still exists in the Constitution of UK. However, as there is an existence of division of power between the judiciary and the executive, the traditional view of the Parliament sovereignty diminishes.[8]

  1. It was clearly stated in the provisions of Section 1 of the Refuse Collection Act 2017 that the license shall be declined by the secretary of the state for the purpose of operating a refuse collection service if such service is proposed to be established within 1 mile of an existing refuse collection service. In R (Heather) v Leonard Cheshire Foundation[9] it was observed that the decision made by the local authority was unreasonable and unlawful and therefore claims of judicial review was brought against the local authority by the residents of care homes. It was observed that the claimants were sheltered in care homes which were owned by the local authority however; there was a sudden transfer of the care homes to a private sector which violated their rights and therefore the decision taken by the local authority was considered to be unlawful by the Court. In Attorney General v Fulham Corp[10] the decision taken by the public authority proved to be illegal and irrational. In the present case study, it can be observed that Rick’s application in order to open a refuse collection service in Portsmouth got rejected as he proposed to open it in a location which is 1.1 mile away from an existing service. It can be stated that Rick has not violated the provisions of Section 1 of the Act. Therefore the decision taken by the secretary of the state can be held as illegal and irrational. Therefore it is advised that Rick must bring a suit of judicial review proceedings against the secretary of the state.
  2. It is evident that Section 1 of the Refuse Collection Act clearly stated no one is entitled to open a refuse collection service if already one is in existence. Therefore, the second location in Southampton where Rick wanted to start his refuse collection service is a violation of Section 1 as the location was situated 0.5 miles away from an existing recycling centre. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs[11] it was observed that the Divisional Court held the decision of the Government to be lawful for not allowing the occupants of the British Indian Ocean Territory to return. The rationality of the orders was challenged and a claim for judicial review was bought before the Divisional Court by the claimants against the Government however, the decision of the Government proved to be lawful. However, in the present case study it can be advised to Rick that his attempt of opening a business of refuse collection in Southampton is unlawful as it violated Section 1 of the Refuse Collection Act 2017. Therefore, it can be stated that the decision taken by the Secretary of the State is lawful for not allowing Rick to open a business of refuse collection. In this case, Rick is not at the authority to bring a claim of judicial review against the Secretary of the state.
  3. It can be observed that Rick’s third site in Fareham where he proposed to open his business of refuse collection was also rejected by the Secretary of the State after consulting an assessor which has been hired privately. Therefore, in this regard it is noteworthy to mention here that such intervention of the assessor is unlawful and irrational. It is the duty of the Secretary of the state to interfere into matters involving the value of property and the character of the local community. The Secretary of the State cannot hire an assessor privately to consult such matters related to the state. It has held in R (Cotton) v Chief Constable of Thames Valley[12] that the decision taken by the public authority was irrational and unlawful as there was an interference of a third party which was hired by such public authority. It was observed that the decision was taken by the decision-maker in consultation with the privately hired local body which according the claimants were unlawful as there involved unlawful delegation of power to a third party. A claim for judicial review was brought before the Court against such public authority where the appeal of the claimant was allowed. Therefore, in the present case, it can be advised to Rick that she should bring a claim for judicial review against the assessor and the Secretary of the state on the ground of unlawfulness and irrationality.
  4. In this case it can be observed that according to the Secretary of the state Rick shall be entitled to present written appeal and an oral hearing would not be permitted. In this regard, it is noteworthy to mention here that oral hearing involves short process n which the claimants are required to consider the facts of the cases carefully. It was held in R (on the application of G) v IAT [2005] 1 W.L.R. 1445[13] that a person shall not have the right to an oral hearing in case of an application which has been refused and therefore no further appeal cannot be made from an unsuccessful application that has been presented for judicial review. In a recent case Samia Wasif v Secretary of State for the Home Department; Mohammed Hossain v Secretary of State for the Home Department[2016] EWCA Civ 82[14] it was observed that the claimants were required to present a request regarding a decision of the High Court and the Upper Tribunal refusing to grant permission for the purpose of applying judicial review in order to reconsider the parties to an oral hearing. It was held that a number of factors should be considered by the Judges while refusing permission to apply for judicial review to allow oral hearing. Therefore in the present case study, it can be advised to Rick that he should bring a claim for judicial review against the Secretary of the state for refusing him to allow oral hearing.
  5. The letter addressed to Rick contained the fact that the appeal shall be judged upon by a panel of local refuse collection experts and one of them is Rick’s former boss Bryan. Therefore, in this regard, it can be stated that an appeal can only be judged by a higher authority. In R (Smith) v North Eastern Derbyshire Primary Care Trust[15] it was held by the Court that the patient forum did not have adequate power and authority to make appropriate decision. However, it can be stated that Rick’s former boss Bryan can be bias towards him while making his decision. In this case, the law of bias is applicable which one of the important grounds of judicial review. In v. Mulvihill[16] it has been observed that the trial judge did not set aside the conviction of the accused on account of bank robbery as he had shares in the bank. Therefore, in the present case study there is an involvement of bias administrative action. Therefore, in the present case Rick is advised to bring a claim for judicial proceedings against such panel.

References:

Gardbaum S, 'Separation Of Powers And The Growth Of Judicial Review In Established Democracies (Or Why Has The Model Of Legislative Supremacy Mostly Been Withdrawn From Sale?)' (2014) 62 American Journal of Comparative Law.

Hadfield GB Weingast, 'Microfoundations Of The Rule Of Law' (2014) 17 Annual Review of Political Science.

Ip, E, '"The Judicial Review Of Legislation In The United Kingdom: A Public Choice Analysis."' (2014) 47-56. "The judicial review of legislation in the United Kingdom: a public choice analysis."

MacKinnon D, '"Devolution, State Restructuring And Policy Divergence In The UK."' (2015) 47-56. The Geographical Journal.

 Müller J, 'Should The EU Protect Democracy And The Rule Of Law Inside Member States?' (2015) 21 European Law Journal.

Swenden WN McEwen, 'UK Devolution In The Shadow Of Hierarchy? Intergovernmental Relations And Party Politics' (2014) 12 Comparative European Politics.

Attorney-General V Fulham Corporation: 1921

Glencore Energy UK Limited v Commissioners of HMRC[2017] EWHC 1476.

R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429.

R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35.

R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35.

R (on the application of G) v IAT [2005] 1 W.L.R. 1445.

R (on the application of Heather) v. Leonard Cheshire Foundation [2002] 2 All ER 936; [2002] EWCA Civ 366.

R v Mulvihill [1990]

Regina V Chief Constable of The Thames Valley Police, Ex Parte Cotton: Ca 1990.

Regina V Secretary Of State For The Home Department Ex Parte Anderson: Hl 25 Nov 2002.

Samia Wasif v Secretary of State for the Home Department; Mohammed Hossain v Secretary of State for the Home Department [2016] EWCA Civ 82.

Smith V North East Derbyshire Primary Care Trust: Ca 23 Aug 2006.

[1] Ip, Eric C. "The judicial review of legislation in the United Kingdom: a public choice analysis." European Journal of Law and Economics 37.2 (2014): 221-247

[2] MacKinnon, Danny. "Devolution, state restructuring and policy divergence in the UK." The Geographical Journal 181.1 (2015): 47-56

[3] HMRC[2017] EWHC 1476

[4] Hadfield, Gillian K., and Barry R. Weingast. "Microfoundations of the Rule of Law." Annual Review of Political Science 17 (2014): 21-42

[5] Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?)." The American Journal of Comparative Law 62.3 (2014): 613-640

[6] Müller, Jan?Werner. "Should the EU protect democracy and the rule of law inside member states?." European Law Journal21.2 (2015): 141-160

[7] Hl 25 Nov 2002

[8] Swenden, Wilfried, and Nicola McEwen. "UK devolution in the shadow of hierarchy? Intergovernmental relations and party politics." Comparative European Politics 12.4-5 (2014): 488-509

[9] [2002] 2 All ER 936; [2002] EWCA Civ 366

[10] [1921]

[11] [2016] UKSC 35

[12] RegCa 1990

[13] [2005] 1 W.L.R. 1445

[14] Samia Wasif v Secretary of State for the Home Department; Mohammed Hossain v Secretary of State for the Home Department [2016] EWCA Civ 82

[16] [1970]

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