Wednesday 30 September 2009

Judicial Review

Winston Churchill once described Britain and the USA as "two nations divided by a common language". This is evident in the use of the term "Judicial Review".

In the USA the term can be used to describe the review of the constitutionality of legislation passed by Congress and signed by the President. Of course it cannot have that meaning in the UK.

In Britain "Judicial Review" is limited to the review of executive decisions. (Although it can extend beyond Government institutions [local and national] to other bodies, who may be private, but exercise 'public functions'. {R v Panel on Take-overs and Mergers ex parte Datafin plc}. Allen & Thompson define the UK power of judicial review "as the jurisdiction of the superior courts (the High Court, the Court of Appeal, and the House of Lords [now the 'Supreme Court'] to review the acts, decisions, and omissions of public authorities in order to establish whether they have exceeded or abused their powers."

There are Four main grounds. The first three were set out by Lord Diplock in the GCHQ case (one of the most important cases in 'Constitutional & Administrative Law') - and the fourth results from the Human Rights Act 1998. They are
  1. Illegality
  2. Procedural Impropriety
  3. Irrationality
  4. Breach of a European Convention [ECHR] right

There are a number of labels used - such as "improper purpose"; "irrelevant considerations" "fettered discretion"; "the rule against bias"; "right to a fair hearing"; "legitimate expectations" - which law students will be familiar with - and the succesful ones know the circumstances which can give rise to complaints associated with those labels.