- Judicial Review: Crash Course Government and Politics #21
- Introduction to Judicial Review | Public Law
- Public Law – Judicial Review Part 1
- Judicial Review of Administration Actions: Module 5 of 5
- Grounds for Judicial Review | Public Law
- Explainer: What is judicial review?
- Marbury v. Madison (1803) | Judicial Review Is Established
Judicial Review: Crash Course Government and Politics #21
Hi. Im Craig, and this is Crash Course Government and Politics, and today were going to talk,about the most important case the Supreme Court ever decided ever. No, Stan, not Youngstown,Sheet and Tube Company vs. Sawyer. Although, that is one of my favorites. Loves me some,sheet and tube. And no, its not Ex parte Quirin. Although I do love me some inept Nazi,spies and submarines. And no, it is not Miller v. California. Get your mind out of the gutter,Stan. We could play this game all day, but this episode is about judicial review: the,most important power of the Supreme Court and where it came from. Dont look so disappointed.,This is cool!,[Theme Music],When you think of the Supreme Court, the first thing you think about, other than those comfy,robes, is the power to declare laws unconstitutional. The term for this awesome power, the main,check that the court has on both the legislative and executive branches, is judicial review.,Technically, judicial review is the power of the judiciary to examine and invalidate,actions undertaken by the legislative and executive branches of both the federal and state governments.,Its not the power to review lower court decisions. Thats appellate jurisdiction. Most people,think of judicial review as declaring laws unconstitutional, and that definition is okay.,The legal purist will quibble with you since judicial review applies to more than just laws.,Appellate courts, both state and federal, engage in some form of judicial review, but,were concerned here with the federal courts especially the U.S. Supreme Court. The Court,has the power to review the following: One, Congressional laws a.k.a. statutes! Statutes.,Since judicial review is a form of appellate activity, it involves upholding or affirming,the validity of laws, or denying it, invalidating the law in question. You might think that,the Supreme Court does this a lot, but it doesnt and historically it almost never happened,before the twentieth century. If the court were always striking down congressional statutes,,it would be hard for people to know which laws to follow, and youll remember that one,of the main things that courts do is create expectations and predictability. For instance,,you could predict that I would eventually be punching this eagle!,Another reason why they dont invalidate laws often is that if the Court frequently overruled,Congress, the Court would seem too political and people would stop trusting its judgment.,If the Court has any power at all, it largely stems from its prestige and reputation for,being impartial and above politics. No one has any problems with the Supreme Court decisions, at all.,Two, the Court can also overturn state actions which include the laws passed by state legislatures,and the activities of state executive bureaus, usually the police.,The power to review and overturn states comes from the Supremacy Clause in the Constitution.,Most of the time that the Supreme Court extends civil rights, it comes out of a state action.,A good example is Brown vs. Board of Education where the Court struck down the idea of separate,accommodations being equal in the context of state public schools.,Three, the Court can review the actions of federal bureaucratic agencies. Although, we,usually defer to the bureaucrats expertise if the action is consistent with the intent,of the legislature which the Court usually finds it is. The Court almost never strikes,down Congressional delegation of power to the executive. Although, you might think that it should.,The fourth area where the Court exercises judicial review is over Presidential actions.,The Court tends to defer to the President, especially in the area of national security.,The classic example of the Court overturning executive action happened in U.S. vs. Nixon,where the Justices denied the Presidents claim of executive privilege and forced him,to turn over his recordings relating to the Watergate scandal. More recently, the Court placed,limits on the Presidents authority to deny habeas corpus to suspected terrorists in Rasul vs. Bush.,So, the Supremacy Clause gives the Court the authority to rule on state laws, but where,exactly in the Constitution does the power of judicial review come from? Trick question!,Its not there, go look ahead, look. Ill wait. See, not there. Wow, you went through,that whole thing really quickly. Fast reader.,The crazy thing is that the power of judicial review comes from the Court itself.,How? Lets go to the Thought Bubble.,The Supreme Court granted itself the power of judicial review in the case of Marbury,vs. Madison. You really should read the decision because its a brilliant piece of politics.,The upshot of the case was that Chief Justice John Marshall ruled that the Court had the,power to review, uphold, and strike down executive actions pursuant to the Judiciary Act of 1789,,and in doing this, to strike down part of that federal law. How he got there was pretty cool.,So, Marbury was an official that President John Adams, at the very end of his term, appointed,to the position of Justice of the Peace. When Marbury went to get his official commission,certifying that he could start his job, James Madison, who was Secretary of State, refused,to give it to him. So, Marbury did what any self-respecting petitioner would do, he went,to the Supreme Court for a writ of mandamus that would force Madison to give Marbury his job.,This is what he was supposed to do according to the Judiciary Act of 1789.,What Marshall did was brilliant! He ruled that yes, Marbury had a right to the commission,but that the Supreme Court could not grant his writ because the law directing them to,do so was unconstitutional. This is brilliant for two reasons. First, by the time the time,the case came before the Court, Thomas Jefferson was President. Those of you who remember Crash,Course U.S. History will recall that that less handsome man told you that Jefferson,was a Democratic Republican while Adams, Marbury, and even Marshall were all Federalists.,By ruling against his own party, Marshall made a decision that was favorable to Jefferson,and thus, likely to be supported.,The second move was even cooler. Marshalls ruling took the power of writs of mandamus,away from the Court, making it look weaker, while at the same time giving the Court the,power to declare the law that had granted it the mandamus power in the first place unconstitutional.,So by weakening the Court in this instance, like Daredevil going blind as a kid, Marshall,made it much stronger for the future, like Daredevil getting stronger in the future.,Thanks, Thought Bubble!,So thats where judicial review comes from, but that still leaves many questions. A big,question is, why has this ruling stuck around and hasnt been overturned by other laws or,later court decisions? Another question is, is judicial review a violation of separation of powers?,Some say that its judges making laws and thus an anti-democratic usurpation of the legislatures power.,Lets talk about this rulings longevity first. Remember when I said last time that the Supreme,Court rulings are binding in lower courts? You dont remember do ya? You were sleepin. Wake up!,Well, in general, Supreme Court precedents are binding on future Supreme Courts too because,of the principle of stare decisis, which is Latin for “let the decision stand.” This doesnt,mean that future Supreme Courts can never overturn the decisions of prior Courts, its,just that they try very hard to not do it.,This idea of precedent is one way that judges can be said to make laws. Appellate decisions,are like common law in that they are binding on future courts and constrain their decisions,and because they dont have to be grounded in a specific statute.,Other courts have to follow the higher courts interpretation of the law, and this interpretation,has the effect of redefining the law without actually rewriting the statute.,On the other hand, appellate decisions are technically not common la
Introduction to Judicial Review | Public Law
in this lesson what were going to do is,introduce the concept of judicial review,so what weve been doing in in previous,lessons is introducing administrative,law more generally talking about what,administrative law actually is and how,it relates to constitutional law in a,way and theyre talking about the,different kind of ways in which the the,government structure in the uk exists,and talking about the so-called pyramid,of norms and how,we use administrative law and we use,judicial review to challenge decisions,made by public authorities and well,ill describe public authorities as,government for for the rest of this,lesson so when we talk about government,were using a very broad,definition were talking about not just,the government as it exists in,in the uk is what we would describe as,the uk government but also the broader,um public authorities that exist in the,uk as well,im going to introduce the concept and a,number of key issues that relate to the,nature of classical judicial review,because dont forget we can talk about,judicial review along the lines and,using the language of human rights and,human rights law something that is quite,relatively new in the in terms of,judicial review and constitutional law,and then we can also talk about just the,classic understanding of judicial review,which we will begin with the classics uh,the classic understanding first,so ultimately the first question is what,is judicial review now judicial review,in its most basic form is the ability,for a high court to examine the,lawfulness of decisions made by public,bodies so again when we talk about,public bodies were talking the broad a,broad definition we have there and its,important that this is a feature of our,wider constitutional arrangements it is,a feature of public accountability and,accountability for public actions and it,ensures that an action,that is made by government or is made by,a public body remains within the,confines of the law,now the concept of accountability is,something that we talked about in the,last lesson,and something that is really really,important when were talking about,administrative law because its the,concept of accountability that really,gives judicial review its its,legitimacy if you will,because what are the mechanisms to,ensure that the government remains,within the framework of the law and with,the broader legal principles that exist,well,a government accountability,is the question that were really asking,how can we hold the government to,account for the decisions that they make,that make sure that they are within the,law okay and the governments,accountability stems from this principle,of the rule of law one of the most basic,fundamental principles of our uk,constitution,and we can delineate between different,kinds of government accountability,something weve looked at when we were,looking at the ways in which we can,challenge government authority and we,can talk about legal accountability,which is what were going to be doing,for the most part when were talking,about judicial review we could talk,about political accountability which we,talked about when were looking at the,role of parliament for example and the,role of the opposition in holding and,scrutinizing government actions from the,perspective of politics and we can also,talk about things that,exist in a sort of quasi-judicial system,theyre not strictly speaking part of,the judicial system but they resemble,judicial decisions and they resemble,judicial actions the le from the last,lesson one of the main examples we,looked at is the existence of the,ombudsman uh these different kinds of,executive,sorry these are different kinds of,public authorities and for the most part,were going to be talking about legal,accountability because under legal,accountability we find our traditional,understanding of judicial review this is,the primary method of legal,accountability for,for the people for us to hold the,government to account,from a legal perspective to hold them,legally account and decisions of public,bodies,made by public bodies can be challenged,in the course they can be challenged,under this concept of judicial review,and this is because when it comes to the,court system they have what is known as,a supervisory jurisdiction in the sense,that they are able to supervise,activities of government bodies on the,basis of public law principles so we,have a supervisory jurisdiction of the,courts and we can contrast that with the,courts appellate jurisdiction which,deals with the merits of a particular,case and does not relate to the concept,of judicial review this sort of this is,sort of a more traditional understanding,of how the judicial system works we have,that and we have a supervisory,jurisdiction as well,now judicial review can be distinguished,between um we can distinguish between,judicial review sorry and the concept of,judicial appeal of an appeals process,the latter is something that,exists within the apple jurisdiction of,the courts and the court does not,substitute its decision for that of the,challenged body when were talking about,um,when were talking about actions of,judicial review this is what we mean,when were talking about supervisory in,nature the courts do not examine uh,under a judicial review whether a,decision was right or wrong but only,they did they only examined whether it,was lawful or unlawful,and the courts will do this on the basis,of whether or not the public body in,question has acted ultraviolet has acted,beyond ones power,and this is something that we talked,about a lot and were going to be,talking about a lot were going to be,talking about the concept of ultraviolet,within the concept of judicial review,and the ability for the courts to decide,whether or not a public body has acted,beyond their own authority or beyond,their power,now judicial review has a number of,functions and these functions include um,from the point of the negatively,affected person the person,or the group or or the organization,thats bringing a judicial reaction,forward,from the point of view of them there is,an element of providing redirect redress,for um grievances so its a kind of,remedy to remedy a a negative and an,unjust situation it provides remedy for,those whose interests have been harmed,by a decision that was made by a public,body and this is a decision that we,remember acted ultraviolet that acted,beyond their powers,it also provides accountability the,whole point of talking about,accountability from a legal perspective,and legal accountability is that,judicial review is intended to provide,this accountability its intended to be,able to hold the government to account,and to be able to hold government,decisions and government actions to,account as well,and this is really the ultimate aim of,judicial review to prevent or challenge,the decisions made by public bodies,and,it is also effectively one of the main,principles of the rule of law,now what were going to do in the next,few lessons is talk about the grounds,for judicial review where we can,actually have a successful claim of,judicial review and then talk about a,number of um,extenuating issues relating to the,concept of judicial review before we,come back and talk about the concept of,judicial review from the perspective of,human rights and human rights law cases
More: invited review / events
Public Law – Judicial Review Part 1
More: in the heights movie review
Judicial Review of Administration Actions: Module 5 of 5
module five judicial review of,administration actions unless,specifically precluded by law the,actions of federal agencies are subject,to judicial review by the federal courts,for purposes of judicial review agency,action covers a range of agency,functions including issuing rules and,orders and granting licenses sanctions,or relief likewise the denial of a,request for any of these and an agencys,failure to act are considered agency,actions subject to judicial review a,failure to act means a failure to engage,in one of the recognized functions which,fall under the definition of agency,action,scope of judicial review,the Administrative Procedures Act,recognizes two primary categories of,exceptions to the general review ability,of agency actions first Congress may,preclude review of specific agency,decisions by statute however since,judicial review plays a critical role in,limiting and overseeing the power of,agencies the courts have held that,agency actions are reviewable unless,there is clear and convincing evidence,that Congress intended to preclude such,review in the statute the APA also,recognizes an alternative narrow,exception to the applicability of,judicial review,when agency action is committed to,agency discretion by law this has been,interpreted to mean that the courts may,not review agency decisions when the law,provides no meaningful standards for a,court to review an agency decision for,abuse of discretion examples of agency,actions recognized to be unreviewable,under this narrow qualification our,decisions concerning whether to,prosecute someone and whether the CIA,may discharge an employee without,stating a cause when a federal court,reviews the actions of an administrative,agency it does not simply take the place,of the agency and read aside the matter,from scratch instead courts employ,standards of review which determine the,extent to which the court will defer to,the findings of the agencies and the,basis on which they may overturn agency,decisions for purposes of judicial,review courts distinguished between the,standard of review applicable to agency,determination of facts and the standard,applicable for agencys interpretation,of the law when it comes to the,determination of facts a court reviewing,agency action will ask only whether the,agency finding was supported by,substantial evidence this standard has,been understood to mean that the court,must accept the agencys findings with,regard to facts as long as the evidence,for the findings is such that a,reasonable mind might accept as adequate,to support a conclusion to make this,determination the court will examine the,evidence from both sides of the case and,not simply make a judgment as to the,reasonableness of agency actions based,on the evidence that supports such,actions if the Court finds that the,substantial evidence test has been met,the court will accept the findings of,fact is determined by the agency,even if,the court itself may consider an,alternative finding of fact to be more,reasonable,note that findings of fact include,inferences made by an agency based on,factual findings this means that a court,will defer to the agencys inferences of,fact such as the determination of,motives as long as such inferences are,reasonable in this way unless the agency,action is deemed unreasonable the courts,will defer to agencies and specifically,to agency policy makers and adjudicators,who often have developed an expertise in,the area over which they preside,deferring to the agency also promotes,uniform standards on the part of the,agency rather than the court,substituting its own judgment for those,cases under review when allowed judicial,review courts are empowered to provide,various remedies for improper agency,actions some statutes specify the,remedies which a court may grant if the,court determines that agency actions are,inappropriate or unlawful in the absence,of such statutory remedies the APA,provides for any applicable form of,legal action as remedies available under,judicial review generally petitioners,ask courts to issue declaratory,judgments establishing that the agency,action was unlawful and or seeking,injunctions to prevent actions from,moving forward another remedy the one,not commonly used is a writ of mandamus,a court will order a writ of mandamus to,compel a federal officer up to and,including the head of an agency to,perform a duty owed to the petitioner,before the court the writ may be issued,on the discretion of the court when the,plaintiff has a clear and indisputable,right to relief and when doing so can,correct an abuse of discretion by the,agency finally when the government,restricts the freedom of an individual,he can seek a writ of habeas corpus to,secure release from detention,review of interpretations of law,agency adjudication and rulemaking also,required determinations on the part of,the agency as to the meaning and scope,of legal authority this is true when the,agency makes a binding legal decision,and when agencies adopt substantive and,interpretive rules such determinations,of law are reviewable by courts as part,of the power of judicial review,traditionally courts had wide leeway in,reviewing agency understandings and,interpretations of the law the courts,could effectively substitute their own,judgments for those of the agency giving,little or no deference to the agencys,own legal interpretation however in a,landmark case Chevron vers Natural,Resources Defense Council the Supreme,Court held that when Congress delegates,to administrative agencies the power to,interpret laws then the courts must,accept agency interpretation of an,ambiguous statute the agencys,interpretation must only be reasonable,for it to be upheld this respect that,courts must give agency determinations,has become known as Chevron deference,after the name of the case in the,Chevron case a federal court reviewed an,EPA rule that defined an ambiguous term,in environmental legislation passed by,Congress a lower court held that while,the term was not clearly defined in the,statute the agencys interpretation of,the term was inappropriate in light of,the statutes overall purpose the Supreme,Court however overturned the lower,courts decision ruling that when the,language of a statute is unclear,Congress implicitly delegates the right,to interpret that statute to the agency,it puts in charge of enforcing that,statute to determine whether Chevron,deference applies courts apply a,two-step analysis first the court asks,whether the statute in question is clear,on its face if the language of the law,is clear the agency is bound to follow,the clear language and the courts need,not defer to agency interpretations,contrary to the clear wording of the,statute however if the statute is,ambiguous the court will proceed to step,two of the analysis which is to ask,whether the agencys interpretation of,the ambiguous terms is reasonable,reasonability is not a high standard and,most agency legal interpretations will,be upheld unless the reasoning involved,is so poor or illogical that the,agencys action is considered arbitrary,and capricious this approach has led to,much,greater deference on the part of the,courts to agency rulemaking note that,Chevron deference only applies to,official agency adjudication and,rulemaking agencies often issue guidance,documents frequently referred to as,interpretive rules meant to inform the,public and guide agency policy but which,are not legally binding these rules even,when they involve interpretation of law,do not merit Chevron deference as,Chevron was limited to the idea that,Congress delegated lawmaking power to,agencies only when they engage in formal,adjudication or substantive rulemaking,agency discretion,while courts will not review agency,actions where the court has no,manageable standards to use as the basis,for review courts can and do review,agency actions in most cases these,include discretionary acts of an agency,regarding the implementation of policy,an
Grounds for Judicial Review | Public Law
what im doing this lesson is introduce,the grounds for judicial review and also,talk about the justification for said,grounds now im going to apologize in,advance because there are a lot of quite,long and heavy excessive quotations that,weve got here and this is something,that i dont want to be doing in future,lessons but,for the purposes of this lesson i,thought it was quite important to take,some quotes from different cases and,from different works to explain the ways,in which we have looked at these grounds,for judicial review and actually been,able to justify their existence on the,basis of um a couple of justifications,so in the last few lessons we have been,introducing the concept of judicial,review within administrative law weve,been talking about what administrative,law actually is weve been talking about,the,constitutional principles such as,parliamentary sovereignty and the rule,of law and how they fit into this,broader administrative law,process and then weve talked about what,judicial review actually looks like and,and,what kind of things it entails,and in this lesson were going to look,at the grounds for judicial review but,mainly be talking about the,justification for the grounds of,judicial review and then in the next,couple of lessons talk about those,grounds specifically individually one at,a time,so the first traditional justification,of,judicial review uh at least for the,classic form of judicial review is that,of the ultraviolet principle weve,talked about the ultravirus principle um,in previous lessons and weve been,talking about,what it means ultimately effectively,what it means is beyond ones authority,and well talk about how this principle,is founded in law,and one case where we can talk about the,existence of the ultraviolet principle,is the is the bodnington case from 1999,where it states that the juristic basis,of judicial review is the doctrine of,ultraviraling so we can see here that,the traditional,understanding of judicial review is,justified on the basis of this principle,of,a public authority not acting beyond,ones powers and again from the case of,iron hull university we have a decision,here where it states that if the,decision maker exercises his powers,outside the just sorry the jurisdiction,conferred in a manner which is,procedurally irregular or is wednesbury,unreasonable uh he is acting ultra viray,and his powers are therefore unlawful,now whats important here is we can see,that this,quotation actually adds a little bit,extra to the principle of ultraviolet,because were not just talking about the,concept of,acting beyond one power like we did in,the previous quotation were talking,about the concept of procedural,irregularity and also ren winsbury,unreasonableness and so,were actually looking at,further justifications in this case with,irregularity and unreasonableness could,exist as further justifications,and the principle of ultraviolet is,appealing in this sense because it is,connected to the two major,constitutional principles in the uk or,at least two of the major constitutional,principles them being the principle of,parliamentary sovereignty and the the,rule of law now,namely parliamentary sovereignty because,within the context of administrative law,parliamentary sovereignty tells us that,any power that is conferred to a public,authority is done so,by parliament and has parliamentary,authority to do so okay and so it is,actually parliament that is ultimately,the um the the the fundamental basis for,um the power that is conferred to public,authority if you think back to a couple,of lessons ago we talked about this,pyramid of norms that exist where we,have um primary legislation and,constitutional principles,that are passed by parliament being at,the top of this pyramid and that there,being secondary legislation and,decisions by public authorities being,lowered down this um this pyramid as,well,now because of the appeal of the,ultraviolet principle is often um,considered um and it is often the case,that the grounds for judicial review are,done uh on this basis of justification,on this principle on the car the idea of,ultraviolet but the problem with that is,um is that there are actually broader,grounds for the uh ultraviolets,principle there are,broader grounds for the establishment of,judicial review uh than that of just,simply the ultra virus principle,and if we think back to the previous,case that weve just looked at the,concept of irregularity and,unreasonableness are also listed as,grounds for judicial review,and how do we,justify these grants for judicial review,do we have to use the same ultraviolet,principle or can we argue that there are,other grounds,or sorry other justifications for the,grounds of judicial review and this,brings us to our first,essay if you will our first very long,piece of text and this comes from john,laws,and laws is talking about these con the,concept of illegality and and,ultraviolet and the concept of,unreasonableness and and unfairness as,well he states that lord diplocks,judicial review criterion of illegality,is plain enough no subordinate body may,exceed the express bounds of its,statutory power okay now this is,ultimately just uh describing in in,fancy language the principle of,ultraviret that no subordinate body so,nobody that is subordinate to parliament,may exceed the bounds of its statutory,power may go beyond its authority,the authority which is conferred to it,by parliamentary sovereignty,this is the power on which um its proper,construction of the act confers,but what of the other heads of review,wensborough reasonableness and,procedural unfairness,they are not as elementary as illegality,in the elaboration of these principles,the courts have imposed and enforced,judicially created standards of public,behavior but the civilized imperative of,their existence cannot be derived from,the simple requirement that public,bodies must be kept to the limits of,their authority by parliament in some,formulation is it true it is true they,have reportedly been justified,by the attribution of an intention,to the legislature that the statutory,decision makers should act reasonably,and fairly but this is largely,fictitious,so let me break this down into,plain english rather than this fancy,language,what we have here is talking about these,other principles these other grounds for,judicial review the concept of,unreasonableness and fairness okay they,stated that they are not as elementary,as illegality theyre not,founded upon and justified on the basis,of ultraviolet okay,and,we note that he states here that it is a,civilized imperative of their existence,that they cannot be derived from this,simple requirement that public bodies,must be kept in the limits so we cannot,derive the concept of unreasonableness,and procedural and fairness okay other,grounds for judicial review from this,same ultraviolet principle we cant do,that and um they argue at the end that,the,while this has sometimes been made the,case okay,this is largely fictitious,so laws goes on to suggest that these,principles are categorically judicial,creations okay and that they have,nothing to do with the intention of,parliament so what we have done here is,separated the fundamental justification,of ultravio on the basis of illegality,when it comes to a ground for judicial,review and these other forms of judicial,review and stated that these are not,principles that are founded upon the,prince upon the the concept and the,notion of ultraviolet these are,principles that are entirely judicial,creations and that have they have no,intention to do anything with parliament,have nothing to do with parliament,so it means we can justify,the the grounds for judicial review,along two lines we have this traditional,ultraviolet principle that,a public authority should not act beyond,ones means the means conferred to it by,parliament and then we also have the,common law justification for,judicial review that it is a judicial,creation
Explainer: What is judicial review?
good afternoon my name is Christian Im,a barrister and among other areas I work,in public law in quests and public,inquiries and prison law Im also author,of the book the law in 60 seconds a,pocket guide to your rights and its,actually within that vein that it really,is a genuine honor to be doing this talk,today,um for constitutional law matters its,really important that the law is,explained in a way the members of the,public can understand not least because,that enables them to engage in debates,about often really important issues and,with that in mind its a pleasure to be,doing this talk today on the topic of,judicial review a topic I feel is very,important and the topic that given that,in recent years weve started to hear it,mentioned more and more on the news in,relation to political Affairs and the,like,um its a topic that its important that,the public,um know about so in this talk today I,plan to discuss what judicial review is,when it can be used what it can achieve,and Ill say from now as well as a sign,of the times whilst I will make every,effort to look directly into the webcam,I of course have notes to this side to,ensure that I can convey all of the,information I want to convey so if at,any point I look away that is the sole,reason,so to start with,um what is judicial review now a very,helpful starting point is actually the,judiciarys very own website,um which states as follows judicial,review is a type of Court proceeding in,which a judge reviews the lawfulness of,a decision or action made by a public,body in other words judicial reviews are,a challenge to the way in which a,decision has been made rather than the,Rights and Wrongs of the conclusion,reached its not really concerned with,the conclusions of that process and,whether those were right as long as the,right procedures have been followed the,court will not the courts will not,substitute what it thinks is the correct,decision and there is a little more to,it but thats a very helpful place to,start so the first question you might,have is well what is a public body,bullet bodies are bodies that provide,services or carry out functions that are,in the public interest so,the NHS government departments local,authorities police all are examples of,public bodies and its helpful to see a,practical example of this so so lets,take the NHS if the NHS make a decision,about you or that affects you but you,believe that the NHS didnt follow the,law when they made the decision or you,perhaps in some way feel that they,didnt follow the correct procedures,having heard what Ive said so far you,might think well surely judicial review,is the the most appropriate Way Forward,but its important I tell you that,judicial review is what we call a remedy,of Last Resort,so that means that lets say youre,wanting to go to court to make a claim,for judicial review,before youll be able to get anywhere,the court will want to see that there,was no suitable alternative remedy,available to you,so therefore continuing with our NHS,example the courts are very likely going,to want to see that you first made a,complaint to the NHS about your issue,and that youve gone through their,internal appeal and review procedures,too and if that didnt resolve the issue,the court will want to see that you went,to the relevant Ombudsman to see if if,they could resolve the issue,now where the NHS is concerned the,relevant Ombudsman is the Parliamentary,and Health Service Ombudsman and they,make final decisions on complaints that,have not been resolved by the NHS in,England but there are numerous different,types of ombudsmen depending on the,context and and the body that you have,issue with so as a barrister I do a lot,of work that relates to prisons and the,prison and probation Ombudsman PPO is,the relevant Ombudsman in in that,situation now,notwithstanding this its important for,me to stress that if it wouldnt have,been reasonable for you to First make a,complaint to the relevant body the court,may be understanding and accepting of,the reasons,um or as to why it was important you,went straight to for judicial review and,a good example of that is is this lets,say theres an individual from a,different country whos been living in,the UK but doesnt have the legal,permission to be here under such efforts,are being made by the authorities to,remove that individual now making a,complaint to the UK border agency under,the agencys complaints procedure,thats unlikely to prevent the,individual who doesnt have permission,to be here from being removed in those,situations a court is perhaps more,likely to be persuaded that going,straight for a judicial review made,sense,another example of where an alternative,to judicial review may not be,appropriate might be a situation where,even if you were to win in that,alternative process it wouldnt be able,to provide you with the outcome that,youre looking for in a way that perhaps,judicial review could and that neatly,brings us on to the next part of this,short talk which is well what can come,about from judicial review what other,potential outcomes or to speak,um more legally what are the available,remedies and there are six remedies that,are normally available in Jr and Ill,read those all out and then Ill provide,an explanation as to what they mean so,we have question orders we have,mandatory orders we have prohibiting,orders we have declarations,injunctions and then finally damages and,damages are only applied in very various,situations so for the purposes of this,short talk I want to speak on damages,but to start with quashing orders quash,isnt a word we really use in everyday,language I quite like the word,personally,um but actually its funny a university,lecture lecturer taught us to to think,of question orders,um as squashing orders they squash,something they get rid of something so,in essence it invalidates the decision,made by a public body meaning that it,has no legal effect so lets say that a,body make a decision stating that you,arent entitled to a certain service if,thats quashed by the court that,decision by the public body effectively,ceases to exist and the public body,would then need to make their decision,again but this time doing it properly,applying the correct legal test or,following the correct procedure,next we have prohibiting orders now,these are similar to quashing mode is,mentioned above the key difference is,that they instead prohibit a public body,from taking a future action so they,therefore act at an earlier stage than a,question order,we then have mandatory orders now,mandatory does compel the public body to,undertake a certain action they might,for example oblige a local authority to,carry out a Care Act assessment where,the court feels that the local Authority,might otherwise not do so,and we then have injunctions and the,reality is that injunctions share,similarities with the two orders I,mentioned just a moment ago but in the,injunction prevents a certain thing,being done or can compel something to be,done next we have declarations now a,declaration is what it says on the tin,its where the court States or declare,what the law is in a situation or rule,on the right to the parties appearing,before it and a declaration doesnt,actually Force any party to do anything,but they do offer Clarity on situations,and they can be very helpful for lawyers,like me who will read the wording of,declarations made by judges in the past,to better understand how things such as,um perhaps the proper way or to,understand things such as how,legislation is to be interpreted that,where it might be a bit unclear,um and you know when I then go to court,fighting for my clients on a similar,issue I can inform the judge Im in,front of at the Declaration made by a,previous,in an office in an effort to assist and,guide the court,while on this topic its worth talking,about,um the Declaration of incompatibility,um and in short if despite best efforts,primary legislation cant be read in a,way that is comp
Marbury v. Madison (1803) | Judicial Review Is Established
© 2016 State Bar of Georgia