What Is Judicial Review:
- The process by which judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is unlawful.
What
Is Common Law:
- The body of legal precedent resulting from the ruling of senior judges. Sometimes referred to as the case law or judges making law – important for the UK constitution.
What
Is Ultra-Vires:
- “beyond the authority” or “beyond ones power”, the process of judicial review can be used to determine whether or not a minister or other government official has acted ultra-vires that is beyond, the authority granted to them in law.
What
Was The Factortame Case And Why Was It Significant:
- A case in which the European Court of Justice (ECJ) established the precedent that UK courts can suspend UK stature law where it appears to violate EU law.
What
Was Incorporated Into Human Rights Act 1998:
- Came into force Oct 2000. Most articles of ECHR into UK law, thereby allowing citizens to pursue cases under ECHR through UK Courts as opposed to going to Strasbourg.
Does
The ECHR Have Anything To Do With The EU:
- No! They are completely separate.
Major
Differences Between The USA and UK Supreme Court:
- Courts cannot strike down parliamentary stature under the HRA
- Make a declaration of incompatibility and invites Parliament to reconsider the offering statute
- Courts can make even greater use of the HRA by using its provision to establish legal precedent in common law.
Has The UK Judiciary
Had A Greater Impact On The Work Of The Executive And Parliament
In Recent Years
|
|
Yes
|
No
|
| In diminishing the role of Lord Chancellor and removing the UKs most senior judges from the HOLs. The CRA enhanced judicial independence making it more likely that judges would be able to hold the executive and Parliament to account. | The physical relocation of UKs top court to its new accommodation in Middlesex Guildhall in 2009 – though highly symbolic, did little to change the legal-constitutional relationship between the judiciary, the executive and the legislature. |
| By allowing the ECHR to be heard in UK Courts to HRA allows the most senior judges to directly question Acts of Parliament – as well as the action of the executive. | Although the HRA gives judges the right to issue a ‘declaration of incompatibility’ where an Act of Parliament appears to have violated the RCHR parliament is under no legal obligation to fall into line with court ruling. |
| The precedent established under the Factortame case allows senior judges to suspect the actions of both Parliament and the executive where either branch appears to have breached EU law. | While senior judges have the ability to rule that ministers in the executive have acted beyond their statutory authority (ultra-vires) those very ministers can use the executive control of Parliament to pass retrospective legislation which legitimises their earlier actions. |
| The extension of EU law in the wake of Maastricht Treaty brought senior UK judges into conflict with both the executive and parliament across a far wider range of policy areas than had previously been the case. | Although the scope and scale of the EU law has grown significantly since Maastricht, many areas of public policy remain largely in the arms of Parliament, thus limiting the scope of judicial action. |
| This growth in judicial action has had a further, indirect impact. Those in the executive and in parliament now look to head off potential conflict in the courts by ensuring that all legislation complies with HRA and EU law. | Any move to review the status of HRA and/or to complete Brexit would massively reduce the ability of the Supreme Court to have a significant impact on the operation of the executive or Parliament. |