Judicial Review Grounds Essay Examples

The case against Judicial Review Essay

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The Case Against Judicial Review

In order to make a case against judicial review it is first important to understand the origins. Born in 1803 out of the landmark United States Supreme Court decision of Marbury V. Madison, judicial review gives the court the power to invalidate any law repugnant (or in conflict with) to the constitution. Judicial review has for the courts, become a self made license to strike down legitimately made legislation by democratically elected representatives. It has been a tool to restrain laws that are in the bill stage by the threat that if the bill materializes into law then at its first challenge the court will strike it down.

In a democratically elected society it is…show more content…

This is exemplified by an individual who has brought a case through the court or legal system. Now that its at the U.S. Supreme Court the person seeks to have the words “under God” removed from the pledge of allegiance (the success of this case is unlikely because of how the court has a conservative right wing majority). Another example of a group with their own agenda undermining democracy is the ACLU (American Civil Liberties Union). The ACLU is seeking to repeal the Bush administration’s highly touted Patriot Act. This is an example of a group that is making it their mission to skirt the proper channels of American democracy and use the judiciary to get sweeping policy change with or without the consent of the governed people.

Judicial review has become the tool of choice for all the public interest law firms. It is through judicial review they are able to get (properly enacted) laws struck down or thrown out. Judicial review goes from being a tool with the intent of protecting the constitution to manipulating the legitimately enacted laws.

In conclusion of the second argument against judicial review, it is inappropriate for individuals and groups to have the ability to make frivolous attacks on laws that are democratically enacted. Furthermore, it is inappropriate to “clog” the judiciary with requests such as removing “under God” from the pledge of allegiance when they should speak to their congressman or senator over the

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This is a sample of our (approximately) 16 page long Grounds notes, which we sell as part of the Judicial Review Notes collection, a VC package written at City Law School in 2016 that contains (approximately) 98 pages of notes across 11 different documents.

Grounds Revision

The following is a plain text extract of the PDF sample above, taken from our Judicial Review Notes. This text version has had its formatting removed so pay attention to its contents alone rather than its presentation. The version you download will have its original formatting intact and so will be much prettier to look at.

GROUNDS FOR JUDICIAL REVIEW INTRODUCTION........................................................................................................................................... 2 The Four Main Grounds.............................................................................................................. 2 Why do Claimants have to plead specific grounds?.........................................................................2 Drafting Grounds for Judicial Review............................................................................................. 2 What Grounds are Available?....................................................................................................... 3 ILLEGALITY.................................................................................................................................................. 4 IRRATIONALITY........................................................................................................................................... 6 Mistake of Fact.......................................................................................................................... 6 Exceptions:............................................................................................................................ 6 Convention Rights Cases: Factual Determinations..........................................................................6 PROCEDURAL IMPROPRIETY.................................................................................................................... 8 Intervention without prejudice?..................................................................................................... 8 Duty to Act Impartially................................................................................................................. 9 Apparent Bias......................................................................................................................... 9 Requirement of fairness ('Natural Justice')................................................................................... 10 Article 6: The Right to a Fair Hearing........................................................................................... 11 Legitimate Expectation.............................................................................................................. 11 Preliminary Issues................................................................................................................. 12 Court's process of determination............................................................................................. 12 Factors in the Balance - Substantive legitimate expectation........................................................12 A Worked Example: ex parte Coughlan [2001] QB 213...............................................................13 Legitimate expectation examples:............................................................................................ 13 PROPORTIONALITY.................................................................................................................................. 15 Other Grounds........................................................................................................................................... 16

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GROUNDS FOR JUDICIAL REVIEW INTRODUCTION It is important to start by putting your grounds for review in context, they are going to be set out in the documents as attached you the N461 Claim Form with the heading 'Detailed Statement of Grounds'. The purpose of the grounds is to set out clear reasons why the decision or action being challenged was unlawful. The ground of review boils down to the lawfulness of the decision. The phrase ultra vires is often used in the JR context, this means outside or beyond powers. Your job as acting for C is to persuade the Court that the public body had gone on beyond its powers and the corresponding bodies decision is, therefore, unlawful.

The Four Main Grounds

1. Illegality

2. Irrationality

3. Unfairness

4. Proportionality (ECHR) The C is limited to these established grounds but there is wide scope for finding arguments within them.

Why do Claimants have to plead specific grounds?
Case law has developed grounds of challenge in judicial review cases.

1. Parties are restricted to these grounds;

2. Your credibility as an advocate requires that you understand what the grounds are and how to formulate them; Your ability to spot strong grounds depends on understanding them fully.

3. Your grounds should set out (See CPR r8.2(b)(ii) and CPR r54.6(1)) and reflect the proper legal basis for the challenge (don't say one thing and mean another). Risk - High Court refuses permission / remedy if you fail to formulate within previously recognised categories of legal error The risk in failing to draft credible grounds is that your claim fails. It is not the judges duty to discern your grounds from vague and undirected argument(s), its your duty to make it clear and credible.

Drafting Grounds for Judicial Review

It must be given proper thought;

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GROUNDS FOR JUDICIAL REVIEW

There are no shortcuts to preparation. If you marshall the facts and law properly, they will lead you to your grounds;

Always check statutory framework and case law to ensure that you are on the correct path;

'Tried and Tested' is always best; Case law availability - if an argument has worked in the past, it is very likely to work again.

Make it easy for the Judge;

Avoid the scattergun approach -don't plead weak grounds just to fill the page; Do not plead every ground which is arguable

Use JR language not appellate language; Be precise in the allegations under the grounds

Avoid merely alleging that a decision is wrong - need to state "The decision is unlawful because …" This is because High Court does not generally review factual decisions

What Grounds are Available?
The main JR grounds were developed through case law. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410D, one of the questions before Court were whether the common law prerogative powers were amenable to review, the Court decided that they were and stated that: "… the principles emerging from Judicial Review case law so far, one can conveniently classify under three heads the grounds upon which the administrative action is subject to control by Judicial Review … The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the Administrative Law of several of the members of the European Union Economic Community but to dispose of the instant case, the three already well established heads that I have mentioned will suffice … ' Lord Diplock

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GROUNDS FOR JUDICIAL REVIEW ILLEGALITY Definition:

"The decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state s exercisable." Lord Diplock - Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Examples of Sub-Categories/ Overlapping Categories: i.

Misdirection in Law Incorrectly applying the law to the facts at hand. To establish whether an illegality ground is open, first find the source of the decision maker(s) power o

Statutory Provision Check whether the maker has complied with the Statute in exercising that power. Check the decided case laws and judgments available. Judgements usually set out how the power is to be applied.

ii.

Ultra Vires Ignoring or exceeding limitations on powers imposed by statute. The decision is unlawful but for the specific reason that the decision maker has gone beyond its powers for eg. imposing restrictions on the C that it had no power to do

iii.

Errors of Jurisdiction Where the decision-maker is not entitled to enter on the decision in question. Where a decision is made by an individual who was not in power to do so under a scheme of delegation

iv.

Adopting an unlawful policy/failure to follow an established policy without good reason Overlaps with legitimate expectation, for eg. C will have a legitimate expectation that a standard policy will be followed and Ds failure to do so will be unlawful

v.

Exercising a discretion contrary to the purpose for which intended. Decision maker cannot use its powers to make decisions contrary to the intended outcome of the statute which gives them those powers

vi.

Fettering Discretion (either by being dictated to by a 3rdparty or through rigid application of a set of rules/criteria)

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GROUNDS FOR JUDICIAL REVIEW A decision maker has a discretion on whether or not to take a particular course of action. They cannot artificially rule out taking a particular course, there must be good reason for not exercising their discretion to take it. For eg. influence by a third (3rd) party will not be a good reason vii.

Taking irrelevant considerations into account / ignoring relevant considerations Appropriate where the decision maker has included factors in its decision making process which they really shouldn't have. Or alternatively, it has ignored material factors that should have influenced that decision.

viii.

Acting in a way that is incompatible with an ECHR right. Usually pleaded as a distinct ground for review.

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