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Workshop 6.5 - Judicial scrutiny of the executive - Coggle Diagram
Workshop 6.5 - Judicial scrutiny of the executive
Constitutional context
The judiciary is not elected and does not share an equal place in the constitutional hierarchy to Parliament and so it is incumbent on judges to defer where appropriate.
The degree to which the judiciary can control what the various arms of government do in practice is finely balanced.
Judicial oversight of legislation?
Judges in the UK have no power to scrutinise proceedings in parliament or to review primary legislation (Acts of Parliament).
There is a partial exception if an Act is incompatible with the ECHR, the Court can make a declaration to that effect pursuant to s 4 of the HRA 1998.Courts cannot invalidate it.
Secondary legislation can be challenged and potentially invalidated.
The legal mechanism for doing this is judicial review which is carried out by the Administrative Court in the KBD in the High Court.
JR arises when the actions and decisions of executive bodies are challenged by interested parties.
Judicial review
The judiciary exercises a check on the executive through the use of JR.
There are 2 purposes of JR:
a) To prevent abuse of power by the executive.
b) To uphold individual rights or interests.
If the executive (or any public body exercising a public function) reaches a decision which is wrong in law, the decision may be quashed by the Administrative Court.
JR examines the legality of a decision (whether it was made within the powers granted to a decision-making, following the correct procedure and on a correct interpretation of the law) and not on its merits.
The merits of a decisions are a matter for the executive.
The role and status of the courts
The judiciary view situations where the executive has ignored or overridden court orders or decisions as a form of disrespect for their constitutional roles.
M v Home Office [1994] 1 AC 377
A judicial order was made in the High Court stopping the removal of M from the UK because he had produce new evidence in response to his rejected asylum seeker application.
The Home Secretary ignored the order and M was deported.
The case is notable as the Court of Appeal found that an order such as this could legitimately be made against the Crown and that the Home Secretary had been in contempt of court for ignoring it.
This reversed the previous position that an injunction could not be made against the Crown.
This case symbolised how the important rule of law principle that the Crown, in the form of a government minister, is just as subject to the law as ordinary citizens.