The Outer Limits of Judicial Review

February 5, 2023

Document 1. 

The Outer Limits of Judicial Review

Neil Duxbury’s article addresses the scope of the high court’s jurisdiction with regard to judicial review. His central argument is that the court can only exercise judicial review relating to matters of public law. English courts have and will only exercise the judicial review where the dispute relates to a public body carrying out public functions. Thus, where the duty is strictly between two private persons, public law rules cannot apply.

Here, he cites the example of an arbitration contract between a private body like a company and an individual. To apply public law rules in a judicial review to such a case will not only be inappropriate but beyond the court’s jurisdiction. When such a dispute between two private persons arises, which involves wholly private matters, the court can exercise its jurisdiction to decide the dispute without relying on judicial review. Even in the case where the court finds a private body has exceeded its authority, acted unlawfully or unproportionally, such a matter can still be resolved under statute or common law rules. 

Indeed, whereas such grounds are commonly associated with judicial review, in such cases of private transactions, judicia review is limited. He thus argues that it has long been the culture of English courts to refrain from exercising judicial review on a dispute where the authority in question was not a public body. Consequently, such a culture does not reinforce the fact that parties cannot seek court intervention when such disputes arise. The parties to a private transaction get their authority out of their private agreements. To do so could, in his opinion, lead to the ouster of court jurisdiction.

However, such arguments cannot stand as the ouster of court’s jurisdiction is not a ground for judicial review. It is also not the purpose of parliament through the Civil Procedure Act to limit or oust the court’s jurisdictions. Moreover, the exclusion of judicial review in the case of private tribunals to oust the court’s jurisdiction the over the decisions of an inferior tribunal. Also, there is no link between the limitation of the judicial review power for the courts. The self-regulatory bodies provide their own rules which oblige the claimants to try arbitration before they can pursue action before a court. In such private transactions, the author argues that the limitation of high court’s power to carry out the judicial review is not an ouster of court’s jurisdiction.

With regards to the issue of exercising a public function, the author argues that both public and private bodies have to determine how people should act. The courts have a duty to act in public interest to vet on how these powers are exercised. Judicial review, in his opinion, is limited to exercise of public power as it is believed that such pare exercised for the public good. They are thus exercising their power based on the need of public interest. Public bodies have no special restraint like private bodies cannot choose whether whose interests their actions affect. 

The author argues that courts exercise a public function to check on the powers of the public bodies. Judicial review can apply to the powers of public bodies even where no specific purpose is affected by the decision. The primary function of judicial review is to safeguard public policy interest in good governance. This is hence the essential purpose of judicial review. Moreover, the promotion of good governance through judicial review reinforces the principle of the rule of law. Judicial review seeks to check on the exercise of power by public authorities. The author thus argues that, whenever power is misused there, it is a violation of the rule of law. The need to follow a set procedure put forth by the law create an obligation to abide by the rule of law. 

Judicial review can be as a facet of the rule of law. Courts exercise judicial review by checking on whether the forms of the power were legally conferred and whether these powers have followed the required procedure in its application. It thus seeks to offer remedies where a loss is suffered if a public body exceeds the power accorded to the body or where the exercise of power was not in line with the law.  He concludes by stating the judicial review in this case and to this extent cannot be applicable in a private dispute. 


Document 2. 

Judicial Review’s Scope, Foundations and Purposes: Joining the Dots, Mark Elliott

Mar Elliot argues that the exercise of judicial review is to enforce the scope, and purpose of power by governmental bodies. The paper argues that there have been developments to the exercise of the judicial review. He argues that this has led to an expanded view of how judicial review s practised. He thus aims to analyse the problematic areas in the adoption of judicial review and the extent to the application. 

Regarding the purpose of judicial review, the author starts by arguing that judicial review is grounded in the constitution. Thus, based on the need to limit and check on the exercise of power, the courts exercise of judicial review is thus justified. Thus, a clear purpose of judicial review is to precent the abuse of power. He argues that this is the basis of judicial review, to prevent the abuse of power by assessing the purpose of power and the control of its exercise. Here the court acts to safeguard the use, purpose and exercise of power. 

The author also argues that another purpose is to control the use of pubic power. Here the author argues that the scope of judicial review is only in cases where the power is exercised by the public body.  He argues that judicial review in common law and mostly in the United Kingdom has always been to assess the scope and use of public power. Moreover, the courts could also to check on the powers exercised by a monopoly. According to the author, the exercise of power is normally at the discretion of a monopoly. A monopoly in this sense is that the person wielding power has the exclusive discretion over the power. The exercise of his authority in mot case is to the exclusion of all other bodies. 

Thus, judicial review is justified as it assesses the legitimacy of the authority’s power. A person affected by the decision of a public body can lodge a suit against the same public body where the power has been exercised beyond its scope. Also, one can seek a judicial review where the power or authority is exercised by a body that is not accorded that power under law. Therefore, it becomes an important that court not only check on the legitimacy of one’s authority but also on the parameters of authority. In doing so the courts check on the nature of an institution and whether the laws that establish the institution grant it such powers. 

In doing so, judicial review performs a public function. By checking on the exercise of public power the court enforces good governance. According to the author, the judicial review is an example of how courts enforce public policy. In order to achieve this, the court will review the decisions of the case of unproportionally exercised power. Thus, the court will secure the public interest through reviewing cases where the public power is not used for the public good. 

This promotes the rule of law. Since, the control of monopoly power is in hands of the public bodies which hold a somewhat, monopoly over such power. There is a possible danger of abuse of this power. The abuse of this power lead to an unjustified and unreasonable exercise of power. The result of this is that the authority of governmental bodies will have unchecked power. Such unchecked power will in the end of the day will lead to abuse which is not in line with what is best interests of the public. It will offend the principle of good governance and the rule of law. 

The author argues that the scope of judicial review. Judicial review can only apply in cases where the person in authority is a public body. This means that the courts in most cases will review the nature of power by the governmental bodies. Courts does exercise de facto power to review the application of the enforcement of public law rules to public bodies. The enforcement is seen from a rule of law perspective. The author thus argues that the courts approach has been one of setting limits for legal powers. Judicial review is therefore subject to the criteria of the type of power being used, the scope of power and the consequences of the exercise of power. He argues that this is a proper application of the judicial review. 

Document 3. 

Judicial Review, Justiciability and The Prerogative of Mercy, B.V. Harris

The article purposes to seeks to determine the potential availability of judicial review where there is a privilege of mercy.  The article starts with the author defining the term justiciability in a judicial review point of view. He defines that the term is the recognition that the court’s competence is limited. Justiciability provides the useful reasoning in the framework against which the courts power can analyse the availability to exercise the decision making in terms of the judicial review. 

Judicial review is a public function. The courts have the power to decide on what is and what is not justiciable in the public. It can be seen to enforce the rule of law and the principle of good governance by deciding which decision is justiciable. The primary consideration that the author makes is that the courts perform decision making functions to which they are not suited in case they are tasked to decide on what is justiciable. He argues many critics argue that courts are to decide on the limits of their own competence, creates an uncomfortable situation. A decision of what is justiciable by the courts the legitimacy of the power in the public. The courts thus exercise such power would make the courts seem as exercising power on its own grounds of justiciability. 

In light of this, the author argues that the justiciable could be determined by four considerations. First, what amounts to justiciable could either be determined the legislative through a written constitution or statutes. Secondly, the constitutional appropriateness. This involves the application of constitutional principles such as the separation of powers. Third, the fact that the court is endowed with the decision-making role. Its personnel are required by dint of their positions to make such decisions. The author bases his argument on the fact that the judges are professionals who have received formal experience and training. The author also argues that in such cases the judges may lack the proper power to determine on justiciability in cases requiring special expertise. The inherently discretionary power in this case can be limited in terms of the specific powers of each arm and branch of government. There is need to carry out oversight as each body cannot in its own merit carries out their own form of supervision as to whether its actions are justiciable. 

The scope for judicial review based on the justiciability on the justifications above, is carried out in the decision making by government bodies. It is hence a check on whether the public power is exercised in a justiciable power. The justiciability of the prerogative of mercy decision making in his view is based on assessing on whether the power has been exercised with the right intent. The courts can hence use its authority and powers to review on the appropriateness of the powers accorded by the law. The decision review of prerogative of mercy decision exposes the finding of justiciability can be based on either primary or secondary justiciability.

In his argument primary justiciability is a means of decision making has any possible responsiveness to judicial review. Secondary justiciability is considered as a determination of whether particular decision making is reviewed on specific grounds. The determination depends on grounds that judicial review which are equally dependent on the context of each case. The exercise of these powers especially in the prerogative of mercy is also subject to judicial review. Convicts who have been sentenced can thus seek judicial review as a mode of supervising the procedure of sentencing.

The sentenced convicts would in this case apply for judicial review to the sentencing procedure. In doing so, the courts will apply both primary and secondary justiciability. The courts will also apply the considerations of both constitutional law and procedural law. He also argues that the purpose of judicial review in this case can be to promote justiciability in the executive, legislative power and in the sentencing procedure. 

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