Public law

1743 Words4 Pages

Nowadays, Judicial Review has been expanded in such extent that it can be argued that any kind of power, statutory or prerogative, will be reviewable. English courts are responsible to handle the manner of the exercise of a public power, in relation to its scope and its substance. In order to achieve this, the Courts will rely on legislative intention an area with a lot of academic debate, those in favour of the ultra vires theory and those of the common law theory. Whether this legislative intention is a convincing constitutional justification will be based on the grounds of judicial review which these grounds give the source of power to the judicial review powers of the Courts. However, there are areas that the Courts should or cannot engage, as they are limited firstly by their constitutional role and secondly by their institutional capacity.

The courts are responsible to ensure that decisions are taken by the standards of procedural fairness. Furthermore, they should ensure that a public authority acts within the framework, of the relevant power or duty. In the case of Ghaidan v Godin-Mendoza as Lord Nichols said: “Parliament has to hold a fair balance between the competing interests of tenants and landlords, taking into account broad issues of social and economic policy”. Furthermore, the Courts are bind by the Human Rights Act 1998 as enacted by the European Convention of Human Rights, to ensure that no public authority may interfere with these rights and even Parliament is expected to consider them. According to Lord Diplock in relation to government and generally the executive: “They are accountable to Parliament for what they do so far as regards efficiency and policy and of that Parliament is the only judge; th...

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...interpretation of statutes cannot conflict with the legislative intent. However in one distinct case, the court could not interpret s.3 of the Act as it would be a violation of the legislative intent.

In conclusion, English courts rely on legislative intent as a convincing constitutional justification of their judicial review powers. Ultra vires is still an important doctrine as it was practical stated in two important cases; R v. Lord President of the Privy Council, ex parte Page and R v. Secretary of State for the Home Department, ex parte Pierson. Furthermore, the Courts also rely on the grounds of review as well as the obligations from the Human Rights Act 1998. According to Lord Woolf “our parliamentary democracy is based on the rule of law. The Courts derive their authority from the rule of law and cannot act in a manner which involves its repudiation.”

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