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

2021 ◽  
pp. 433-478
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Executive Power ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Difference

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The court is tasked with checking the legality of government action, which is mainly done through the process known as judicial review. Judicial review is a special form of court process that calls the executive to account for its exercise of power. This chapter discusses the history of judicial review; the grounds of review; the judicial review of delegated legislation; judicial review and the constitution; the difference between judicial review and appeal; the role of the courts and the Human Rights Act 1998; the judicial review procedure; and the extent to which judicial review can act as a check on executive power.

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

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Executive Power ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Difference

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The court is tasked with checking the legality of government action, which is mainly done through the process known as judicial review. Judicial review is a special form of court process that calls the executive to account for its exercise of power. This chapter discusses the history of judicial review; the grounds of review; the judicial review of delegated legislation; judicial review and the constitution; the difference between judicial review and appeal; the role of the courts and the Human Rights Act 1998; the judicial review procedure; and the extent to which judicial review can act as a check on executive power.

17. Irrationality and Proportionality

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Difference ◽  
Proportionality Test ◽  
Rights Issue

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review, and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non Human Rights Act judicial review cases but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.

17. Irrationality and Proportionality

2021 ◽  
pp. 565-600
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Difference ◽  
Proportionality Test ◽  
Rights Issue

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non-Human Rights Act judicial review cases, but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.

19. Remedies

2021 ◽  
pp. 652-679
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Public Authority ◽  
The Public ◽  
Wide Range ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
Primary Materials

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998 (HRA 1998), including a declaration of incompatibility in accordance with section 4 HRA 1998.

19. Remedies

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Public Authority ◽  
The Public ◽  
Wide Range ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
Primary Materials

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998.

4. The Rule of Law

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Rule Of Law ◽  
Antisocial Behaviour ◽  
The Rule Of Law ◽  
Legal Reforms ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Uk

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter explains the meaning and significance of the rule of law, briefly tracing the history of the rule of law and considering the main similarities and differences between various theories of the rule of law. It then assesses the impact of recent legal reforms on the operations of the rule of law in the UK. These reforms include the introduction of antisocial behaviour orders; the extension of detention without trial; and the Constitutional Reform Act 2005, which reinforces the importance of the independence of the judiciary and puts measures in place to attempt to strengthen the separation of the courts from the other arms of the state. Finally, the chapter discusses judicial interpretation of the rule of law through a selection of cases that have examined the legality, irrationality, or procedural impropriety of the actions of the executive or public bodies, and whether their actions conform to the Human Rights Act 1998.

15. The Parties to a Judicial Review: Who Can Make a Claim for Judicial Review and Against Whom Can a Claim for Judicial Review be Made?

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Public Authorities ◽  
The People ◽  
Or Groups ◽  
Private And Public ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Or Organization

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.

9. Parliamentary Supremacy and Human Rights

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Human Rights Protection ◽  
Protection Of Human Rights ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Parliamentary Supremacy ◽  
The Uk

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the legislative supremacy of the UK Parliament and its impact on human rights protection (and vice versa), discussing the history of the European Convention on Human Rights (ECHR) in a UK context and the ECHR’s legal standing. It considers the Human Rights Act 1998 (HRA 1998) and its operation in the UK. The chapter addresses how the ECHR and the HRA 1998 affect parliamentary supremacy, and how the human rights context differs from the EU context as regards parliamentary supremacy. Finally, it analyses whether parliamentary supremacy provides adequate protection of human rights.

9. Parliamentary Supremacy and Human Rights

2021 ◽  
pp. 259-294
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Human Rights Protection ◽  
Protection Of Human Rights ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Parliamentary Supremacy ◽  
The Uk

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the legislative supremacy of the UK Parliament and its impact on human rights protection (and vice versa), discussing the history of the European Convention on Human Rights (ECHR) in a UK context and the ECHR’s legal standing. It considers the Human Rights Act 1998 (HRA 1998) and its operation in the UK. The chapter addresses how the ECHR and the HRA 1998 affect parliamentary supremacy and how the human rights context differs from the former EU context as regards parliamentary supremacy. Finally, it analyses whether parliamentary supremacy provides adequate protection of human rights.

15. The Parties to a Judicial Review: Who Can Make a Claim for Judicial Review and Against Whom Can a Claim for Judicial Review Be Made?

2021 ◽  
pp. 479-516
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Public Authorities ◽  
The People ◽  
Or Groups ◽  
Private And Public ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Or Organization

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review, unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.

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