Judicial review where the Attorney General refuses to act: time for a change

Legal Studies ◽  
1988 ◽  
Vol 8 (2) ◽  
pp. 189-200 ◽  
Author(s):  
Barry Hough
Keyword(s):  
Judicial Review ◽  
Subject Matter ◽  
Civil Service ◽  
Attorney General ◽  
Controlling Factor ◽  
House Of Lords ◽  
Judicial Scrutiny ◽  
Discretionary Powers ◽  
Public Right

‘Today, therefore, the controlling factor in determining whether the exercise of a prerogative power is subject to judicial review is not its source but its subject matter.’ So uttered Lord Scarman, expressing the view of the majority of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case). The Attorney General, in deciding whether to institute proceedings for the enforcement ofa public right, exercises a power vested in him by virtue of the royal prerogative. This power, it was previously held, was ‘absolute and non-reviewable’. The question now arises as to whether the Attorney General’s discretionary powers are embraced within that category of prerogative powers whose subject matter renders them amenable to judicial review, or whether they remain beyond judicial scrutiny.

scholarly journals Legal control of discretionary powers in Ghana: Lessons from English administrative law theory

Afrika Focus ◽  
1998 ◽  
Vol 14 (2) ◽  
Author(s):  
Kwadwo B. Mensah
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Attorney General ◽  
Administrative Law ◽  
Administrative State ◽  
Depth Analysis ◽  
Legal Control ◽  
Popular Party ◽  
Discretionary Powers

This paper develops along the following line. First, we shall attempt to explain what discretion is, why it has become very important in the modem administrative state, and the dangers that it poses in a democratic legal system. It then looks at the problems which have to be faced in justifying judicial review of discretion. It takes an in depth analysis of legal liberalism and functionalism. Aimed with these 'lenses', it attempts to explain the theoretical basis of two important Ghanaian cases, Re Akoto , and People's Popular Party v Attorney General (PPP v AG)'. It examines the provisions which regulate the use of discretionary powers in the Ghanaian 1993 Constitution and it looks at the choices we have to make from the various theories and the development of the administrative state in Ghana.KEY WORDS: functionalism, Ghana, judicial review, law, liberalism 

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ Case)

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Civil Service ◽  
Public Law ◽  
Case Note ◽  
House Of Lords

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case). This case note discusses both the ‘new nomenclature’ (Lord Roskill at 415) of judicial review established by Lord Diplock, and the House of Lords’ conclusion that prerogative powers are, in principle, reviewable by the courts. There is also discussion of the deployment of national security arguments to avoid review. The document also includes supporting commentary from author Thomas Webb.

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ Case)

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Civil Service ◽  
Public Law ◽  
Case Note ◽  
House Of Lords

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case). This case note discusses both the ‘new nomenclature’ (Lord Roskill at 415) of judicial review established by Lord Diplock, and the House of Lords’ conclusion that prerogative powers are, in principle, reviewable by the courts. There is also discussion of the deployment of national security arguments to avoid review. The document also includes supporting commentary from author Thomas Webb.

4. The Royal Prerogative

2021 ◽  
pp. 76-102
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Judicial Review ◽  
Civil Service ◽  
The Rule Of Law ◽  
Rigorous Approach ◽  
House Of Lords ◽  
The Relationship

This chapter considers the evolving constitutional status of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.

scholarly journals Legal Control of Discretionary Powers in Ghana: Lessons from English Administrative Law Theory

Afrika Focus ◽  
1998 ◽  
Vol 14 (2) ◽  
pp. 119-140
Author(s):  
Kwadwo B. Mensah
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Attorney General ◽  
Administrative Law ◽  
Administrative State ◽  
Depth Analysis ◽  
Legal Control ◽  
Popular Party ◽  
Discretionary Powers

This paper develops along the following line. First, we shall attempt to explain what discretion is, why it has become very important in the modern administrative state, and the dangers that it poses in a democratic legal system. It then looks at the problems which have to be faced in justifying judicial review of discretion. It takes an in depth analysis of legal liberalism and functionalism. Armed with these ‘lenses’ it attempts to explain the theoretical basis of two important Ghanaian cases, Re Akoto and People’s Popular Party v Attorney General (PPP v AG). It examines the provisions which regulate the use of discretionary powers in the Ghanaian 1993 Constitution and it looks at the choices we have to make from the various theories and the development of the administrative state in Ghana.

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ Case)

2019 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Judicial Review ◽  
Civil Service ◽  
Public Law ◽  
House Of Lords

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case). This note discusses both the ‘new nomenclature’ (Lord Roskill at 415) of judicial review established by Lord Diplock, and the House of Lords’ conclusion that prerogative powers are, in principle, reviewable by the courts. The document also includes supporting commentary from author Thomas Webb.

A Workable Method

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Numerous Case ◽  
Careful Scrutiny ◽  
The Government ◽  
Judicial Scrutiny

This chapter discusses the task of methodology. How might a court ascertain the appropriate mode of review in a given security-liberty case, and how might the court effectively undertake that review? The chapter suggests a calibrated judicial review method that affords the government wide latitude in most national security matters, with courts adopting a posture of substantial deference. However, when the government claims pressing public necessity to legitimate measures that curtail fundamental liberties of citizens or noncitizens, careful judicial scrutiny takes over. With Korematsu as backdrop, the method delineates the mechanics for selecting the appropriate type of review in a given case. In doing so, it speaks to a judicial review conundrum generated by a briar patch of unexplained boilerplate language in numerous case opinions—opinions that first recite “the court’s substantial deference” to the executive on security matters, then follow with “but the court is duty-bound to protect constitutional liberties,” implicating careful scrutiny.

Part V Judicial Review before the Court of Justice of the European Union, 2 Direct Actions and Judicial Review before the Union Courts

2016 ◽  
Author(s):  
Kreuschitz Viktor ◽  
Nehl Hanns Peter
Keyword(s):  
European Union ◽  
European Commission ◽  
Judicial Review ◽  
Subject Matter ◽  
State Aid ◽  
Access To Justice ◽  
The European Union ◽  
Court Of Justice ◽  
The Subject

This chapter addresses access to justice in the context of centralized enforcement of EU State aid law and judicial review before the Union courts. The subject matter of litigation is State aid measures adopted in particular by the European Commission as the main supervisory body in this field pursuant to Article 108 TFEU. The term ‘access to justice’ is meant to comprise both the various conditions of standing for bringing direct actions against such measures before the General Court (GC), which essentially comprise actions for annulment (Article 263 TFEU), actions for failure to act (Article 265 TFEU), and actions for damages (Article 268 in combination with Article 340(2) TFEU). The chapter also looks at the nature and the types of acts that are possibly subject to judicial review before the GC.

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