Saturday, April 6, 2019
English Constitution Essay Example for Free
English Constitution EssayThe role of the courts and judicature in judicial redirect examination is to undertake that Public authorities knead policefully all such authorities be subject to the rein of law and are non permitted to process ultra vires (beyond their world-beaters). The power that government has comes from powers granted to that authority by statute or delegated legislation. The Human Rights Act 1988 (HRA) created an additional ground s6(1) making it unlawful for existence bodies to act in way that is incompatible with the European Convention on Human Rights. (ECHR)Since the seventeenth century, in the trip of Monopolies 1602 77 ER 1260 the courts have claimed the authority to inquire into the extent and limits of the Crowns common law prerogative powers. Since 1700, the role of the courts in reviewing administrative and judicial decisivenesss has been explained on the basis of the rule of law whereby each Act or closing was invalid because it was in breach of or unauthorised by the law, or was beyond the scope of the power given to the decision maker by the law (Sunstein, 2001).Limitations of Judicial surveil Judicial review is limited to the examination of executive decision and decision make by government authorities it is constitutional function of the High solicit to ensure that public bodies and government do not act unlawfully. It acts not in order to give effect to any tete-a-tete rights of the individual who made the application but in order to fulfil the role. It is the examination of legal decision by public body and it is not an appeal whereby decision maybe substituted but review of that decision only.Judicial review is only concerned with the lawfulness and not with the merits of decision. Attorney General v Fulham mass, ex relatione Yapp 1921 whereby the High Court granted declaration that the council had acted unlawfully and Cooper v Wandsworth Board of Works (1863) 14 CB NS 180 that the council had a cted unfairly and had failed to exercise their statutory power lawfully. The Primary Purpose of Judicial Review The primary purpose of judicial review was summarised by Lord Lindley MR in Roberts v Gwyrfai District Council 1899 2 CH 608, 614 I know of no duty of the Court which is more important to observe, and no power of the Court which is more important to enforce, than its power of keeping public bodies within their rights. The instant public and government bodies go beyond their constitutional rights they act so to damage and domination of private persons, and those individuals are allowed to be protected from harm arising from such operations of public bodies (Sunstein, 2001 p47)In the case of Council of Civil Service Unions v Minister for the Civil Service 1985 AC 374 (GCHQ Case), Lord Diplock observed that The theme of every judicial review is judgment made by more or less person or government body whom I shall name the decision mker or else refusl by him to mke decision In latest years judicial review has extended to private bodies which can be said to exercise public function, R v City Panel of putsch and Mergers, ex parte Datafin Ltd 1987 2 QB 815Lord Diplock stated in the GCHQ case, that three actions that give grounds for Judicial review are illegality, irrationality and procedural impropriety (Merrill, 2001).Illegality, for example government body misinterpreting legislation Anismimic Ltd V Foreign allowance 1969 2 AC 147, or acting ultra vires (acting beyond its prescribed power) AG v Fulham corporation case, or making judicial error of fact R v Secretary of State for station Department, ex parte Khawaja 1984 AC 74, or unlawfully delegating power or fettering kickshaw Port of capital of the United Kingdom Authority, ex parte Kynoch Ltd 1919 1 KB 176 or where power is exercised by someone who does not meet the qualifications situated down in the granting of power, the act must be considered illegal, Entick v Carrington (1765) 19 ST Tr 1030 and Allingham v The Minister of horticulture and Fisheries 1948 1 All ER 780.In Vine v The National Dock Labour Board 1957 AC 488 Lord Somervell of Harrow said that in deciding whether there is such power, two factors have to be considered the nature of power and the character of the personIrrationality, the decision of public body is irrational if it is so wild that no reasonable body could have come to the decision Associated Provincial Picture Houses Ltd v Wednesbury Corp 1948 1 KB 223 or so outrageous in its defiance of logic or received moral standards that no sensible person who applied his mind to the question could have arrived at the decision Lord Diplock GCHQ case, Unreasonableness includes acting for improper motives, failing to take account of relevant considerations, failing to respect the requirements of inhering justice and fettering discretion by adopting rigid policy.With irrationality the courts have moved on from reviewing the procedures by which dec ision has been made and testing its legality to substituting the courts own view on the merits of the decisionThe standard of reasonableness enforce by the courts is high. If the standard were too low it would mean that judicial discretion was being substituted for administrative discretion (Merrill, 2001). However, the protection of human rights has allowed the courts to use jurisdiction to employ stricter test than in other Wednesbury cases, R v Lord Saville of Newdigate ex parte Brind (no 2) 1991 1 All ER 720 (Merrill, 2001).