EB 2012-2013

JR1
Constitutional and Administrative Law
Judicial Review I
(week commending 11 Feb 2013)
We now have three tutorials focussing on the law of judicial review. Some
of the questions below are general ones designed to get you thinking
about judicial review at the general level, and its constitutional
significance. In class you should, as ever, raise any relevant questions that
arise the main focus for discussion is likely to be on the questions marked
with an asterisk*.
A. Delegated Legislation
Le Sueur pp 481-484 and 497-501
1) What is delegated legislation, how is it made, and how is it different
(generally speaking) from primary legislation? What role does
Parliament have in the creation of delegated legislation?
2) *What issues and controversies arose in R (Javed) v Secretary of
State for the Home Department [2001] EWCA Civ 789, as extracted
in Le Sueur at p 501? (Note, for a useful summary of / comment
upon the case see R English QC (1 Crown Office Row), Javed,
available at http://www.1cor.com/1315/?form_1155.replyids=513
(accessed 2 Feb 2013). What was the relevance (if any) of Article 9
of the Bill of Rights? As Le Sueur asks (p 501), *What constitutional
justifications are there for the courts having a role in reviewing
delegated legislation when parliamentary supremacy denies them
such a role in relation to primary legislation? This leads us on to
judicial review
B. Introduction to Judicial Review
Le Sueur pp 724-745

J Jowell, Administrative Law chapter 10 in V Bogdanor, The British

Constitution in the Twentieth Century, OUP, 2003 (on BB - read
over this generally, but do not make detailed notes. The
important point is to understand the general points being made
about the evolution of judicial review over the decades, and
locating that in the context of constitutional evolution more
generally. This should be a useful chapter to read again at the
end of your studies on judicial review see also Le Sueur at
p725-729).
P Leyland and G Anthony, Textbook on Administrative Law, (OUP,
2012) pp 204-206 (copy on BB) [relevant to standing]

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JR1
1. What is judicial review? What is/are the constitutional
justification/s for having judicial review? How is judicial review
relevant to the rule of law? What is the ultra vires theory of judicial
review and how has it been criticised? (Le Sueur goes into this in
some detail, at pp729-735; for our purposes do not get bogged
down in the detail, you just need to know the main lines of
argument).
2. What remedies are available for successful judicial review
claimants? (Le Sueur p745). *Le Sueur writes, at p 610, Often,
people use the judicial review procedure because they want to force
a public body to make a more favourable decision in their case but
judicial review is not well suited to achieving this outcome.
Elaborate on this statement.
3. In his chapter Administrative Law, Jowell sets out four stages in the
development of administrative law over the last century. Sum up his
main arguments and (very broadly) what the four stages covered
(see also Le Sueur at pp725-729). *Why is importance attached to
Lord Atkins dissenting judgment in Liversidge v Anderson [1942] AC
206 (extracted in Le Sueur at p 726) today?
C. Extending the reach of Judicial Review
(Reading as above)
4. (First some questions reminding you of some material already
addressed on the course, so it is assumed that you are familiar with
the issues.The point here is to reflect on the extended reach of
judicial review, but also its limitations). Revisit your materials on the
royal prerogative and judicial review. To what extent has the Royal
Prerogative become the subject to judicial review in recent
decades? What was the distinction made between jurisdiction and
justiciability in the GCHQ case? In what ways, if at all, is primary
legislation subject to judicial review? Recall here our earlier
examination of the Factortame and Jackson cases (and consider this
again in the light of your future study of the HRA (Ss3 and 4)).
The extending reach of judicial review may also be seen from the
perspectives of which bodies are amenable to it (Q 5, below), and who
can access it (and it what circumstances) (Q 6, below).
5. *What bodies are amenable to judicial review? *Why is the issue of
such importance today and what legal tests have been established
here? (see the Datafin and Servite Houses cases as detailed in Le
Sueur *why was there amenability in the former case, but not the
later?).
6. *Which are the leading cases on standing to make a judicial review
claim and what tests do they set down? *What are the arguments
for and against an open/ closed approach to the sufficient interest
test? *Why is this issue significant from a constitutional law
perspective?

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JR1
7. Finally, consider the following item: V. Bondy and M. Sunkin, Judicial
Review Reform: Who is afraid of judicial review? Debunking the
myths of growth and abuse. UK Const. L. Blog (10th January 2013)
(available at http://ukconstitutionallaw.org accessed 26 Jan 2013)).
END.