Tutorial 1 JR and Locus Standi PDF

Preview

Summary

Public Law Notes from Second Year, 2020/21...

Description

Public Law 2 – Tutorial 1: JR & Locus Standi  

JR – challenges something the executive has done before the court. “Executive” typically considered everything from the Prime Minister to Local Council Actions. Controversial as underneath JR is the debate on whether courts should have this power or not – Concern that courts reviewing may begin to look like the courts usurping the role of the executive. E.g. view that the Judiciary is unelected and thus should not be able to make decisions instead of the elected executive which would ultimately undermine the role of the Gov’t.

1a. Importance of Judicial Review:    

 

Enables the checks and balances system to work - it plays an essential role in ensuring that each branch of government recognizes the limits of its own power Enables people to challenge the exercise of power by the Government, preventing tyranny of Government Officials protects civil rights and liberties by striking down laws that violate citizen’s constitutional and Human Rights. By bringing a judicial review claim, a claimant can also (if the claim is successful) get a court to set aside a decision, practice or policy of a public body that affects not just the individual claimant but also everyone else in the claimant’s position. So, one judicial review case can affect thousands of people Jr acts as a mechanism for preventing the dominion of the majority over the minority: defence for minority groups and against politically powerful corporations Harlow: NGO’s don’t often use JR for benefit – Hill takes opposing view and argues NGO’s are beneficial for JR as they provide a source of information analysis for judges to use to make JR more inclusive for the wider public.

1b. 



 



The different ‘grounds’ of judicial review o Illegality o Irrationality o Procedural Impropriety o Proportionality The difference between judicial review and an appeal o JR differs from appeals in that while appeals are brought to challenge the outcome of a particular case, JR analyses how public bodies reached their decisions, also looking at the process by which the decision was made. o Look at merit rather than legality Which types of decisions can be judicially reviewed? o Decision of public bodies and the executive The remedies available to judges o Prerogative Orders o Traditional Remedies Any special constitutional principles of which judges should be aware o Parliamentary Sovereignty o S.3 & S.4 of the HRA 1988.

2. What are Harlow’s arguments for a restrictive approach to standing? What are Hale, McGarry and Fraser’s arguments in favour of a permissive approach? Which arguments do you prefer and why? Harlow’s Restrictive Approach  Concept of standing is too wide – opens floodgates  Idea of pluralism (PGs) creates problem  Too many involved with too many reasonings is just unrealistic  “If we allow the campaigning style of politics to invade the legal process, we may end by undermining the very qualities of certainty, finality and especially independence for which the legal process is esteemed, thereby undercutting its legitimacy”  “It was logical in this framework to restrict the right to bring judicial review proceedings to someone with a 'substantial interest' in the matter before the court”

Permissive Approach  Positive that it is so wide – Pergau dam is an unlawful huge scandal  More efficient to bring a lot of people in one case than many different ones.  Giles Fraser:  Baroness Hale:

3. What is the test of locus standi under the HRA 1998? Why do you think this test differs from the common law test? Should it differ? See the Miles article below. Under the Human Rights Act 1998 the test of Locus Standi is that of Victims only under Section 7. Section 7 defines a person as a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought forwards in the ECHR in respect of the act. Subsection 7(3) provides that an applicant must have sufficient interest in the unlawful act only if they were a “victim” of the act – that is that the impugned act or measure violates the claimant’s rights. This differs from the Common Law test slightly as under Common Law, the requirement to meet “sufficient interest” is merely to have a clear interest in the decision at hand, and there is no victim requirement in order to hold standing for JR. This could be due to the high amount of countries that make up the European Union; if there wasn’t such a safeguarded means for gaining standing in the ECHR, there would be an open floodgate resulting in an influx of cases from all of the EU nations, which would create a problem for the ECHR due to the financing of the cases and the time it would take to be able to rule them at a detailed enough level....