Essay On Judicial Review

The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.

It can be argued illegality as a ground for judicial review was first established in the case of Entick v Carrington . The legal principle which emerged from the case was that, executive authorties are precluded from doing things which are not stipulated in common law or statutory provisions. This was to be the foundation for what Lord Diplock would term illegality in Council of Civil Service Unions v Minister

Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.

The House of Lords decision in the Daly underpinned one of Lord Bingham’s eight sub rules which refers to the law providing adequate protection for fundamental human rights. It was held the instruction issued by the Secretary of State violated prisoners right to a legal adviser under the seal of legal professional privilege. By holding the Secretary of State had no right to issue such an instruction, the House of Lords gave due regard to the Lord Bingham’s rule of law. A similar notion was present, in Wheeler where it said the club had a basic “constitutional right … to freedom of the person and freedom of speech” which had been interfered with by the council’s decision to ban use of the

In Wheeler it was said, foreign policy was a matter strictly within the expertise of the central government. By quashing decision to ban the club the court was, placing a limit on the expertise of local authorities to make decisions which could affect foreign policy. Some commentators such as Clive Coleman however, have argued that judicial review does not successfully perform the constitutional of separating powers. He stated there is constitutional tension between “a powerful executive, that likes to stomp around the constitution, getting its way on everything and on the other, a small independent judiciary…punching well above its