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1st Class Essay on Foundations of Judicial Review
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1st class essay on constitutional foundations of judicial review in English law
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CHRISTOPHER TAN HOMERTON COLLEGE“A decade or so on from its heyday, the debate concerning the constitutional foundations of
judicial review can now be seen to have been an irrelevance. On a theoretical legal it largely
failed to engage with the crucial question whether Parliament is sovereign, and on a
practical level it did little to address how courts should actually decide judicial review
cases.” Do you agree?
INTRODUCTION
In this essay, I will argue that much of the debate on the basis for judicial review is
irrelevant, though a clear theoretical basis is desirable. I will however argue that the
underlying crux of the debate, parliamentary sovereignty, has been properly considered.
Finally, I will argue that the multi-faceted debate has influenced how the judiciary analyse
and decide cases. Commented [HJH1]: Good intro.
AN IRRELEVANCE?
In practical terms, the “basis of judicial review” debate often seems esoteric.
Without a proper understanding of the role of judicial review, the very legitimacy of
judicial review is open to attack. Courts have no explicit statutory right to review the
actions of the executive – as Craig points out, the development (and, he would say, the
present justification) for judicial review was the exercise of common law powers
predicated upon general considerations of fairness and justice. As such, ‘Green Light’
theorists (Harlow and Rawlings’ term) like Griffiths would seek to minimise the role of
judicial review, believing courts lack legitimacy and expertise to oversee the
governments’ decisions. If there really is no good reason why courts should have this
power, then could Parliament do the unconscionable and pass an Act to preclude any sort
of judicial review, or hollow out administrative law into the Soviet-style rubber stamp for
executive abuse described by Unger? Admittedly, this eventualising is totally implausible.
At a more specific level, one’s preference for either of the ultra vires, common law, and
modified ultra vires theories supposedly has far-reaching implications.
Depending on the theory one adopts, ouster clauses may or may not be valid. Forsyth
argues that jurisdiction in the face of ouster clauses can only be protected if courts
enforce parliament’s will, as in Anisminic. He says the South African case, Staatspresident
v United Democratic Front (1988), illustrates the necessity of the ultra vires doctrine. In
that case, Rabbie ACJ held that an extensive restriction of press freedom to report on
‘unrest’ following a minister exercising powers delegated under the Public Safety Act
1953 was lawful. Though the minister had a duty under Roman-Dutch common law to
make clear orders, because Rabbie ACJ rejected ultra vires for a common law model of
judicial review, the statute trumped common law and the order stood. This analysis was
adopted in Lord Morton’s dissenting judgement in Smith v East Elloe Rural Development
Council [1956] too.
This analysis was criticised by Craig: surely wide-ranging non-contingent common law
rules could have applied instead.
Neither position is convincing. If judicial review and ultra vires is about enforcing the will
of Parliament, then the analysis of Mohamad Dzaiddin FCJ in the Malaysian case of Pihak
Berkuasa Negeri Sabah v Sugumar Balakrishnan & Anor Appeal [2002] is not wrong either.
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