Chapter 12 End-of-chapter questions

It is often said that the reason judges are uniquely equipped to conduct judicial review is that they are impartial but official bodies who can act as an honest broker between individual and public interests. Why, then, do judicial review sceptics reject the notion that judges are equipped to conduct judicial review, despite their independence and supposed neutrality?

(a) Questions raised in judicial review proceedings are political, rather than legal, in character, and cannot - and should not - be determined by judges.

(b) Judicial review proceedings involve an unusually large amount of discretion, which effectively allows them to make decisions of their own.

(c) Judges' decisions are binding on parties.

(d) Judicial review involves the questioning of decisions made by those with direct or indirect democratic authority. It is inappropriate for unelected judges to interfere.

Writing in 1995, Lord Mustill suggested that courts have 'had no option' but to develop judicial review over the preceding decades. Which of the following statements most accurately reflects the underlying sentiment expressed here?

At the time, advocates for an expansive judicial role, such as Stephen Sedley and John Laws, had become influential members of the Court of Appeal. This made it inevitable that judicial review would expand.

Over time, the UK has become a party to human rights treaties and other international documents which require the courts to take on a greater role in protecting the individual.

The courts had become more independent during the preceding decades. This meant that they were finally able to develop principles of judicial review.

The growth of the executive and the relative lack of action from Parliament over the course of recent history had left individuals without protection from the executive; the courts have therefore been forced to develop judicial review in order to compensate for this.

Match each of the theories providing the basis of judicial review with their descriptions below.

Parliament intends to impose limits upon the actions of public authorities; the courts enforce these limits.

Ultimately constitutional fundamentals justify judicial review, which operate above and beyond Parliament.

Principles of the common law dictate that public authorities act in a certain way; the courts enforce these standards.

Parliament intends that public authorities apply the law in line with the standard of the rule of law; the courts enforce this standard.

There are many arguments for and against the ultra vires doctrine of judicial review. Which of the following statements are weaknesses of that theory? Select all that apply.

Parliament only rarely seems to provide explicit approval of judicial review in its laws.

The theory does not seem to respect the sovereignty of Parliament.

Judicial review has been applied in cases without any statutory regulation, such as in the Miller/Cherry cases concerning the use of the prorogation power.

Parliament has acted in ways which seem to resist the application of judicial review by the courts, such as when it implements ouster clauses in legislation.

Why might questioning the basis for judicial review be important in terms of public law? Select all that apply.

(a) It invites an examination into the nature of the sovereignty of Parliament, and in particular whether it is limited in any respect.

(b) It invites an examination of how and why courts use their powers, and whether they owe their authority ultimately to the courts or the legislature.

(c) It invites an examination into how each of the branches of government - executive, legislature and judiciary - interact with one another and how this relationship ought to govern the extent of each branch's powers.

(d) An examination of the basis of judicial review is a useless endeavour.

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