Importance of Judicial Review and Human Rights

The report intends to focus on the concept of judicial review that can be sought by the general public in case of infringement of human rights. In this regard the scope of civil liberties and the Human Rights Act 1998 has been explained. The intention of the report is to highlight the ways in which the actions of the administrative bodies are controlled by the higher authorities.

Running head: IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
Importance of Judicial Review and Human Rights
Name of the Student
Name of the University
Author Note

1IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
Executive Summary:
The report intends to focus on the concept of judicial review that can be sought by the general
public in case of infringement of human rights. In this regard the scope of civil liberties and the
Human Rights Act 1998 has been explained. The intention of the report is to highlight the ways
in which the actions of the administrative bodies are controlled by the higher authorities. In this
regard, the report has emphasized the changing relation of the State with the individuals. The
report is commissioned to examine the idea of constitutionalism in United Kingdom along with
the various organs of the State.

2IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
Table of Contents
Introduction:..................................................................................................................................3
Discussion:......................................................................................................................................3
Scenario 1:..................................................................................................................................3
Scenario 2:..................................................................................................................................5
Scenario 3:..................................................................................................................................7
Recommendations:........................................................................................................................8
Conclusion:.....................................................................................................................................8
References:...................................................................................................................................10

3IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
Introduction:
With the advent of doctrine of separation of powers and with the introduction of balance
of power, the State has been divided into three separate bodies- the legislature, executive and the
judiciary1. The Courts, while exercising their powers of judicial review, is not concerned by the
decision made by the executive2. However, the process of judicial review is associated with the
process of making decision rather than an appeal. In this regard, it is noteworthy to mention here
that in order to control the administrative bodies by ensuring that the decision taken by them are
fair and reasonable, the judiciary has proved to be beneficial.
Discussion:
Scenario 1:
In order to evaluate the situation of the first scenario, the scope of human rights law
needs to be explained. In this regard, it is noteworthy to mention here that the articles of
European Convention of Human Rights have been designed in such a way in order to restrict the
power exercised by the states. According to the Section 6(1) of the Human Rights Act 1998, if a
public authority acts in a manner which is consistent with a conventional right, then it is
considered to be unlawful. However, Section 10 Schedule 2 of the Human Rights Act 1988
confers right on the Government to provide remedies for such breach of Convention. In this
regard, it has been observed that the significance of the term public authority was accepted by
1 Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established
democracies (or why has the model of legislative supremacy mostly been withdrawn from
sale?)." The American Journal of Comparative Law 62.3 (2014): 613-640.
2 Sadurski, Wojciech. "Judicial Review and Protection of Constitutional Rights." Rights Before
Courts. Springer, Dordrecht, 2014. 145-166.

4IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
the House of and has not depended on judicial review in YL v. Birmingham City Council [2007]
3 WLR 1123.
According to the provisions of Section 7 of the Human Rights Act 1998, it is not always
decisive to engage proceedings of judicial review in order to affirm a right of convention against
an action by the public authority which is unlawful4. In this regard, it can be stated that freedom
of expression is a basic fundamental right before the European Convention of Human Rights
where an individual cannot be punished except in cases for a breach of law. The provisions
regarding freedom of expression is covered in Article 10(2) of the ECHR.
The European Court of Human Rights (ECHR) in Magyar Helsinki Bizottság v Hungary
Application no. 18030/115 has held that refusal to obtain information has been regarded as an
unjustified breach of human rights under Article 10 of the ECHR. In Magyar Helsinki Bizottság
v Hungary Application no. 18030/11 it was held that every person possesses the basic right of
information and therefore refusal to obtain information breaches the principles of Article 10 of
the European Convention of Human Rights6.
Therefore the provisions of Section 6 (1) and Section 10 of the Human Rights Act 1998
can be applied to the present case study. In the present case study it can be observed that the
library cannot afford the maternity costs of Mina and therefore she was informed that she was
losing her job. In this regard, it is noteworthy to mention here that Mina was already informed
about the matter and therefore the basic fundamental right regarding the right to information was
3 [2007] 3 WLR 112.
4 Fabbrini, Federico. "The euro-crisis and the courts: judicial review and the political process in
comparative perspective." Berkeley J. Int'l L. 32 (2014): 64.
5 18030/11.
6 Jordão, Eduardo, and Susan Rose-Ackerman. "Judicial review of executive policymaking in
advanced democracies: beyond rights review." Admin. L. Rev. 66 (2014): 1.

5IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
not violated. However, in this context, the right of freedom of expression has been breached.
Like every other individual, Mina possesses the basic right of freedom of expression and
therefore she has the right to express her thoughts. Therefore, in the given case it can be stated
that provisions of Section 10 (1) of the Human Rights Act 1998 rights applies to the situation.
The provisions of Section 10 (1) of the HRA 1998 confer right on the government authorities to
provide remedies regarding breach of the principles of Section 10(1) of the Human Rights Act
19987. Therefore, the provisions of Section 10 of the Human Rights Act 1998 can be rightfully
applied in the present case study so that the government authorities can provide remedies to
Mina regarding breach of her human rights. In this regard, the case of The Sunday Times v.
United Kingdom (1979) 2 EHRR 245, Eur Ct HR8 can be explained because in this case, it was
recognized by the ECHR that individuals have a right to secure information even if such
information is a part of the pending litigations. Therefore, from the given case study, it can be
stated that as Mina was already informed that she was losing her job and due to this reason she
cannot take judicial review proceedings against the library officials.
Scenario 2:
The Mayor has been considered as a public body. The decisions taken by such public
body can be challenged under the proceedings of judicial review. In this regard, it is noteworthy
to mention the grounds that are responsible to carry on the proceedings of judicial review. These
proceedings can be illegality, discretion, irrationality and procedural impropriety. The public
body who is the sole decision maker shall not act illegally and must not abuse its powers. In this
7 Stone Sweet, Alec, and Thomas L. Brunell. "Trustee courts and the judicialization of
international regimes: The politics of majoritarian activism in the European convention on
human rights, the European union, and the world trade organization." Journal of Law and
Courts 1.1 (2013): 61-88.
8 (1979) 2 EHRR 245, Eur Ct HR.

6IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
regard, it can be stated that unlawful delegation of power falls under the category of illegality. It
is required that the public authority must act according to the powers granted by the legislation.
It is unlawful if the public body acts outside its powers if the powers have been delegated to it by
the higher authority. Therefore, it can be stated that it will be unlawful if the Mayor is allowed to
abuse its power outside its authority.
The abuse of discretionary power has been considered to be unlawful. Since time
immemorial, the exercise of statutory powers is vested upon the Parliament. In Porter v Magill9
it was held that if a power is not exercised by the public authority for the purpose of the public
then in that case it is regarded as unlawful. It was also held that the power conferred on a public
body by the superior authority is for the purpose of public benefit and not for electoral gains of a
political party. However, if the verdict given by the public authority is unreasonable then the
courts are at the authority to interfere.
The provisions of Section 6 of the Human Rights Act 1998 considers that it would be
unlawful for a public body to act in a way which is inconsistent to the principles of a Convention
right10. When the Human Rights Act 1998 came into force, the individuals were affected by the
violation of the human rights which were passed by the public bodies. However, there was a
scope for challenge before the court of law with the help of proceedings of judicial review. In
this regard, the European Convention of Human Rights had no such role to play. The provisions
of Section 6 of the Human Rights Act 1998 confers right upon individuals to challenge the
9 [2001] UKHL 67.
10 Craig, Paul. "EU accession to the ECHR: competence, procedure and substance." Fordham
Int'l LJ 36 (2013): 1114.

7IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
decisions of the administrative bodies and the decision taken by the subordinate legislation, if
their rights has been violated or infringed in any way11.
This can be explained with the help of R v Panel on the Takeovers and Mergers, ex
parte Datafin plc [1987] QB 815 (CA).12 In this case it was observed that a panel has been
established in London in order to regulate the business operations of the companies including its
mergers and acquisitions. It was observed that the decision taken by the panel appeared to be
unreasonable and outside its powers. Therefore, Datafin challenged the decision of the panel
before the administrative tribunal and sought judicial review. In this case, the panel has been
regarded as a public body and therefore the nature of the decisions taken by it were subjected to
judicial review.
The government authorities must use its discretionary decision in application with the law
of the land. This has been explained in Regina v Liverpool Corporation ex parte Liverpool Taxi
Fleet Operators Association: CA 197213. In this case, the decision of the Council was challenged
by the cab drivers. The decision of the Council was regarding the increase of number of hackney
cabs that has been operating in the city for a long time. However, it was held by the Chairman in
at a public meeting prior to the decision of the Council that the number of the hackney cabs
would not be increased until the legislation provides permission regarding the matter. It was held
that, the taxi cab owners considered the resolution of the Council to be unfair and therefore they
have the right to approach the Court of Justice for fair trial.
11 Kavanagh, Aileen. "What’s so weak about “weak-form review”? The case of the UK Human
Rights Act 1998." International Journal of Constitutional Law 13.4 (2015): 1008-1039.
12 [1987] QB 815 (CA).
13 [1972] 2 Q.B. 299 (Ca).

8IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
In the given case study, it can be observed that the Mayor of the local council reduced the
service of bus in the village of Little Taddlecombe once a day. It can be observed that such
decision not only affected Mina but also her friends living in that village. Therefore, in the given
case study, the Mayor can be regarded as the public body. The public body has the power to take
decision for the benefit of the individuals and not for his personal gains. The mayor did not like
the village as he could not enter the biggest marrow competition held at the village. Therefore, he
took such decision for his personal gains and for his political party which is unlawful. In this
regard, it is noteworthy to mention that Mina can seek judicial review against the unreasonable
and unlawful decision made by the Mayor.
Scenario 3:
The right of an individual to freedom of thought, belief and religion is contained in
Article 9 of the Human Rights Act 199814. In this regard, it can be stated that the principles of
Article 9 can be applied to the given scenario. However, the principles of Article 11 can also be
applied as it deals with the freedom of assembly and association. Therefore, in the present case
study it can be observed that Mina was involved with a group of Muslim people and together
they used to hold meeting regarding the integration of other faiths. It was observed that the
meeting was banned by the Local Council without providing prior notice to the group. In this
regard, it can be stated that the local council acted beyond its power and the nature of the
decision was unreasonable and unlawful. In Eweida and Others v United Kingdom15 it was held
that the principles of Article 9 was violated when the employer of the applicant refused her to
14 Gerards, Janneke, and Joseph Fleuren. "Implementation of the European Convention on
Human Rights and of the judgments of the ECtHR in national case-law." A comparative
analysis (2014).
15 [2013] ECHR 37.

9IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
wear a crucifix. R v Chief Constable of Gloucestershire and others16 restrictions were placed on
a public meeting which was peaceful in nature and thereby violated the provisions of Article 11
of the Act. Therefore, in the given scenario, the principles of both Article 9 and 11 can be
applied. It can be further stated that Mina can carry on the proceedings of judicial review against
the decision of the local council.
Recommendations:
It can be recommended that if the decision passed by any public authority seems to be
unlawful, then in that case the decision of such public body can be challenged before the
Administrative Tribunals. The subject matter of public law is controlled by the Government.
Therefore, the government is at the sole authority to make decision for the benefit of the general
public. If the decisions made are inconsistent to the interests of the public, then such decision can
be quashed before the Administrative Court of Justice. Therefore in the given case study, it can
be stated that Mina has the right to seek judicial review proceedings against the mayor for
reducing the bus service in the village. In this regard, Mina can also carry on the proceedings of
judicial review against the local council from banning meetings and barring the group from the
town hall without giving any notice.
Conclusion:
The discretionary power given by the Parliamentary government to the executive is
sometimes overseen by the Judiciary. In this regard, it is noteworthy to mention here that the
method of judicial review has been introduced in order to prevent administrative errors. In
United Kingdom, the Parliament is considered as the supreme body and its decision are regarded
16 [2007] 2 A.C. 105.

10IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
as constitutional. However, in recent times with the intervention of the judiciary, there has been a
scope for judicial review in order to provide limitation to the discretionary power of the higher
authorities.

11IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
References:
Craig, Paul. "EU accession to the ECHR: competence, procedure and substance." Fordham Int'l
LJ 36 (2013): 1114.
Eweida v United Kingdom [2013] ECHR 37.
Fabbrini, Federico. "The euro-crisis and the courts: judicial review and the political process in
comparative perspective." Berkeley J. Int'l L. 32 (2014): 64.
Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established
democracies (or why has the model of legislative supremacy mostly been withdrawn from
sale?)." The American Journal of Comparative Law 62.3 (2014): 613-640.
Gerards, Janneke, and Joseph Fleuren. "Implementation of the European Convention on Human
Rights and of the judgments of the ECtHR in national case-law." A comparative analysis (2014).
Jordão, Eduardo, and Susan Rose-Ackerman. "Judicial review of executive policymaking in
advanced democracies: beyond rights review." Admin. L. Rev. 66 (2014): 1.
Kavanagh, Aileen. "What’s so weak about “weak-form review”? The case of the UK Human
Rights Act 1998." International Journal of Constitutional Law 13.4 (2015): 1008-1039.
Magyar Helsinki Bizottság v Hungary Application no. 18030/11.
Porter v Magill [2001] UKHL 67.
R v Panel on the Takeovers and Mergers, ex parte Datafin plc [1987] QB 815 (CA).
Regina (Laporte) v Chief Constable of Gloucestershire Constabulary. [2007] 2 A.C. 105.

12IMPORTANCE OF JUDICIAL REVIEW AND HUMAN RIGHTS
Regina V. Liverpool Corporation, Ex Parte Liverpool Taxi Fleet Operators' Association And
Another [1972] 2 Q.B. 299 (Ca).
Sadurski, Wojciech. "Judicial Review and Protection of Constitutional Rights." Rights Before
Courts. Springer, Dordrecht, 2014. 145-166.
Stone Sweet, Alec, and Thomas L. Brunell. "Trustee courts and the judicialization of
international regimes: The politics of majoritarian activism in the European convention on
human rights, the European union, and the world trade organization." Journal of Law and
Courts 1.1 (2013): 61-88.
The Sunday Times v. United Kingdom (1979) 2 EHRR 245, Eur Ct HR.
YL v. Birmingham City Council [2007] 3 WLR 112.