English Constitution Essay Example for Free

English Constitution Essay The role of the courts and government in judicial review is to ensure that Public authorities act lawfully; all such authorities are subject to the rule of law and are not permitted to act ‘ultra vires’ (beyond their powers). The power that government has comes from powers granted to that authority by statute or delegated legislation. The Human Rights Act 1988 (HRA) created an additional ground s6(1) making it unlawful for public bodies to act in Ð ° way that is incompatible with the European Convention on Human Rights. (ECHR)Since the seventeenth century, in the Case of Monopolies 1602 77 ER 1260 the courts have claimed the authority to inquire into the extent and limits of the Crown’s common law prerogative powers. Since 1700, the role of the courts in reviewing administrative and judicial decisions has been explained on the basis of the rule of law whereby any Act or decision was invalid because it was in breach of or unauthorised by the law, or was beyond the scope of the power given to the decision maker by the law (Sunstein, 2001). Limitations of Judicial Review Judicial review is limited to the examination of executive decision and decision made by government authorities; it is Ð ° constitutional function of the High Court to ensure that public bodies and government do not act unlawfully. It acts not in order to give effect to any private rights of the individual who made the application but in order to fulfil the role. It is the examination of Ð ° legal decision by Ð ° public body and it is not an appeal whereby Ð ° decision maybe substituted but Ð ° review of that decision only. Judicial review is only concerned with the lawfulness and not with the merits of Ð ° decision. Attorney General v Fulham Corporation, ex relatione Yapp [1921] whereby the High Court granted Ð ° declaration that the council had acted unlawfully and Cooper v Wandsworth Board of Works (1863) 14 CB NS 180 that the council had acted unfairly and had failed to exercise their statutory power lawfully. The Primary Purpose of Judicial Review The primary purpose of judicial review was summarised by Lord Lindley MR in Roberts v Gwyrfai District Council [1899] 2 CH 608, 614: â€Å" I know of no duty of the Court which is more important to observe, and no power of the Court which is more important to enforce, than its power of keeping public bodies within their rights. The instant public and government bodies go beyond their constitutional rights they act so to damage and domination of private persons, and those individuals are allowed to be protected from harm arising from such operations of public bodies† (Sunstein, 2001 p47) In the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ Case), Lord Diplock observed that: â€Å"The theme of every judicial review is Ð ° judgment made by some person or government body whom I shall name the ‘decision mÐ °ker’ or else Ð ° refusÐ °l by him to mÐ °ke Ð ° decision† In latest years judicial review has extended to private bodies which can be said to exercise Ð ° public function, R v City Panel of Takeover and Mergers, ex parte Datafin Ltd [1987] 2 QB 815Lord Diplock stated in the GCHQ case, that three actions that give grounds for Judicial review are illegality, irrationality and procedural impropriety (Merrill, 2001). Illegality, for example Ð ° government body misinterpreting legislation Anismimic Ltd V Foreign Compensation [1969] 2 AC 147, or acting ultra vires (acting beyond its prescribed power) AG v Fulham Corporation case, or making Ð ° judicial error of fact R v Secretary of State for Home Department, ex parte Khawaja [1984] AC 74, or unlawfully delegating power or fettering discretion Port of London Authority, ex parte Kynoch Ltd [1919] 1 KB 176 or where power is exercised by someone who does not meet the qualifications laid down in the granting of power, the act must be considered illegal, Entick v Carrington (1765) 19 ST Tr 1030 and Allingham v The Minister of Agriculture and Fisheries [1948] 1 All ER 780. In Vine v The National Dock Labour Board [1957] AC 488 Lord Somervell of Harrow said that in deciding whether there is such Ð ° power, two factors have to be considered â€Å"the nature of power and the character of the person†Irrationality, the decision of Ð ° public body is irrational if it is ‘so unreasonable that no reasonable body could have come to the decision† Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 or ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question could have arrived at the decision’ Lord Diplock GCHQ case, Unreasonableness includes acting for improper motives, failing to take account of relevant considerations, failing to respect the requirements of natural justice and fettering discretion by adopting Ð ° rigid policy. With irrationality the courts have moved on from reviewing the procedures by which Ð ° decision has been made and testing its legality to substituting the courts own view on the merits of the decisionThe standard of reasonableness imposed by the courts is high. If the standard were too low it would mean that judicial discretion was being substituted for administrative discretion (Merrill, 2001). However, the protection of human rights has allowed the courts to use jurisdiction to employ Ð ° stricter test than in other Wednesbury cases, R v Lord Saville of Newdigate ex parte Brind (no 2) [1991] 1 All ER 720 (Merrill, 2001).