Chapter 14 Guidance to answering the end-of-chapter questions

The Role of the Courts, Judicial Review, and Human Rights

1. What is the purpose of judicial review?

  • Think back to your learning about the separation of powers. Which powers are involved in judicial review?
  • What do you remember about the term ‘mechanism of accountability’ and how does this apply to judicial review?
  • How is the role of the courts in acting as a check on the government different from that of Parliament?
  • How does Part 54 of the Civil Procedure Rules define judicial review? See the extract on p. 421 for a reminder.

2. To what extent may the jurisdiction of the court be limited or ousted?

  • What is an ‘ouster clause’ and why would Parliament insert one into statute? How might you recognise an ouster clause? Read pp. 440–441 if you are not sure.
  • What was the significance of the House of Lords decision in Anisminic? What was the wording of the ouster clause in the Foreign Compensation Act 1950 and how did the court treat this?
  • What is the rationale for treating ouster clauses strictly? Think about the purpose of judicial review again here. If you need help, reflect on Lord Wilberforce’s explanation as described on p. 442.
  • How did the Court of Appeal treat the ouster clause in the Privacy International case? Note that the case has since been considered by the Supreme Court. It is worth looking up what the Supreme Court had to say about the ouster clause: R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22.
  • What do you remember about time-limited ouster clauses and are these effective in preventing challenges by way of judicial review?

3. To what extent do you believe that judicial review is able to ensure that the rule of law is respected by the executive?

  • What does it mean to say that judicial review is ‘the rule of law in operation’? What types of checks are made through judicial review? See p. 421 and pay attention to the key terms in bold if you are unsure.
  • What do you remember Ganz to have said about the constitutional significance of judicial review? (see p. 425).
  • Do you recall what the ‘ultra vires’ principle refers to as a constitutional basis for judicial review? (see p. 425).
  • How do the grounds for judicial review protect the rule of law? Reflect on Lord Diplock’s explanation in GCHQ

4. Should the judicial review procedure be exclusive?

  • What is meant by ‘exclusive’? Look back at the discussion of O’Reilly v Mackman on p. 437.
  • Why did Lord Diplock hold that it would be an abuse of process to allow the case in O’Reilly v Mackman to proceed other than by judicial review?
  • Is it easy to distinguish public and private law cases? What are ‘collateral challenges’?
  • How did the introduction of the Civil Procedure Rules alter the way that the rule in O’Reilly v Mackman was applied?

5. What is delegated legislation? On what grounds can the courts judicially review delegated legislation?

  • Start by contrasting delegated legislation with primary legislation. By whom is primary legislation made and by whom is delegated legislation made? What is the ‘delegation’?
  • Can you name any types of delegation? For example, a statutory instrument is one type of delegated legislation. See the note on p. 445 for help with other examples.
  • Primary legislation cannot be challenged by judicial review (remember that Parliament is sovereign). Is this true of delegated legislation?
  • Delegated legislation is reviewed on the same grounds of review as administrative decisions. However, there are some differences in how receptive the courts are to arguments under the different grounds. Can you recall why a court might be reluctant to hold that delegated legislation is irrational? See p. 447 for a reminder.

6. What changes have been made or proposed to the judicial review process? Discuss the impact of these changes on the effectiveness of judicial review as a method of making the executive legally accountable?

  • The government tried to tighten up the rules of judicial review in 2013. What were some of the factors that were driving those proposals?
  • What changes were made to the time limits for planning and procurement decisions or to the ability of a judge to refuse permission or a remedy for a successful claim? Can you name the legislation that brought in those changes?
  • What other changes were brought in by the Criminal Justice and Compensation Act 2015 and why were any of these controversial? Look at Lord Pannick’s explanations on p. 405.
  • How does a reduction in legal aid impact on the ability of the courts to hold the executive to account through judicial review? Refer to the extract from Hickman’s blog post on p. 451.