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Judicial Review I
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- Опубликовано: 27 фев 2019
- Link to second video (Judicial Review II): • Judicial Review II
Al Yamamah: sites.tufts.edu/corruptarmsde...
The CPS: www.judiciary.uk/you-and-the-...
Jeremy Hunt, Lewisham Hospital & ultra vires
NGL these videos have saved me in my public law exam for my first year of university. Thank you ❤️
Have watched quite a few of your videos this week as I'm self teaching AS Politics and they have been amazingly helpful! Thank you so much!
Hi and thanks for getting in touch. If the videos have been any help at all I am absolutely delighted and good luck with the exam. (Do let me know if you would like any online tutorial assistance!) Best wishes!
Thank you, this has helped me so much for my public law essay!
Just won a JR. The whole thing was about process, not facts.
Thank you!
In the restraining order settings o see trial courts in California, using judicial notice improperly and basically using the misdirection to make litigants think what the court just did wasn't a trial court judge reviewing another trial court judges decision and placing the burden of proof upon the " father"
Thanks sir
Thank you greatly for all your A-level Politics videos; they are really helpful! I a taking exams this summer and am finding the Judiciary the most difficult. Currently looking at this question: 'To what extent is The Supreme Court an increasingly politicised institution?'. How would you advise approaching this question? (Edexcel)
Good morning and thanks so much for taking the time to pass on those compliments. In terms of the judiciary, you have my sympathy: it is tricky for students and for teachers alike and that makes it a bit of a cinderella topic. However, it is my favourite and as an occasional examiner myself it was always refreshing to come across a student who was prepared to tackle the subject and even more refreshing (and therefore sympathetically marked) when it was done well.
The key thing to understand the judiciary is that their role is to give effect to (and therefore not to challenge) the will of parliament. The legal sovereignty of parliament means that parliament’s will (ie law) is supreme and ALL must follow it, and that includes government and parliament itself. And so when the government loses a case (or on those odd occasions when parliament’s laws are themselves challenged in the courts) all the courts are doing is making sure parliament’s will - as expressed in law - is being respected.
From this it follows that when the courts do challenge government or parliament, the courts themselves are not being political - they are merely ensuring that parliament’s will is respected. And in doing so, specifically in order not to look or appear political, the courts will bend over backwards in trying to find a way to give the government or parliament the benefit of the doubt. This is what in the USA is called judicial self-restraint - the courts have not been elected themselves and so for them to go around carelessly smacking down the will of those who have been elected is profoundly anti-democratic.
The net effect of this is that of all the cases of judicial review brought against the government, only 10% of those are considered worthy of a hearing and of that 10%, only a further 10% of hearings actually go against the government. The best example I know of this is the Al Yamamah case where in the judicial review of the decision to desist the investigation (ie neither the investigation itself nor stopping of the investigation but rather the decision to do so) initially went against the government in the high court only to be reversed in the Supreme Court.
Anyway, to answer your question directly, I would look at it as follows …
Round 1
Neutrality: appointment on merit, not politics (contrast with America) but concerns re demographics
Round 2
Judicial independence: courts themselves are independent of politics but CPS is less so
Round 3
Judicial self-restraint: the benefit of the doubt accrues to the elected officials but to such an extent that it does actually look like institutional bias.
I hope that makes sense. This is all pro-bono but anything else will have to be at commercial rates! I do offer online tutorials and if you are interested in them please do let me know.
BWs
Bert
@@drfegg288 Hi Bert, thank you for that thorough and helpful reply. Interesting to know that you offer tutorials and I will keep that in mind. Thanks once again for all your high quality videos, I am definitely going to let my whole class know about you!
What would your argument be on whether the basis for Judicial review should be either the concept of ultra vires or the rule of law?
Hi and good question! There are two issues here, I think. The first is what is the actual position in the real world, the second how I think it should be. The first is simple - I think. My understanding is that the rule of law - as a constitutional principle - is not justiciable in British Courts - though I welcome correction from m'learned friends. This certainly seemed to be the thrust of the smackdown the Supreme Court delivered to the Appeal Court in the Shemima Begum case. There the Appeal Court seemed to have argued that the rule of law demanded that SB have her day in court while in those specific circumstances the various bits of legislation at play gave the Home Secretary full discretionary power. (Check out my video here: ruclips.net/video/yAQ0bMlxow8/видео.html) In essence, then, this is a positive question: the legal position is that judicial review can be exercised only in specific and relatively narrow circumstances, those being ultra vires, irrational or procedurally erroneous. The second seems to be a more normative question: should the court be allowed to use constitutional principles in judicial review. This has been, to an extent, addressed in the The Dissolution and Calling of Parliament Act 2022 which specifically established the exercise of the prerogative powers to be outside the scope of judicial review. This is important as at least implicit reference to constitutional principles (specifically parliamentary sovereignty and parliamentary government) was made in the prorogation ruling and the new legislation has made clear that will not happen again. So in essence what I think in this matter is moot. However, when once I would have happily given the courts arbitration over constitutional matters - and I do hold that the decision in Miller II was the right one, even if it is IMHO legally very dubious - experience of American politics would suggest that giving an unelected and unaccountable body the keys to constitutional arbitration is problematic at best and a Very Bad Idea at worst. But then again, that was before Very Bad Democratically Selected and Accountable Actors dragged British politics into a godawful constitutional mire so .... I just don't know! Both models work well until they don't and then you have to face some very tricky questions. I hope that if this does not exactly answer your question, it gives you something to work with. And thanks for the interest!
Thanks for this
You are welcome and hope it helps. Do let me know if you have any questions and I hope to be rolling out on-line tutorials soon. Is that something in which you might be interested?
@@drfegg288 Would this before the summer exams? If so that would be extremely helpful.
Regards, J.
Happy to start whenever it suits!
@Omar D hi and thanks for the reply. I usually charge £50 an hour, paid in advance via PayPal. Let me know how that works for you - I'd be only too happy to help. All the best.
Accepting that 'the Courts are neutral' is always going to be the textbook position on the English legal system, it would be good to see some argumentative critical engagement with the reality of the situation. Do the judgements of English courts genuinely stand up to that claim? Or do they perhaps - being filled so obviously and disproportionately with persons from particular backgrounds of wealth and privilege - tend toward making conservative judgements which act generally to preserve the current formulation of society which has benefited them so greatly and allowed them to rise to salaried positions paying hundreds of thousands of pounds?
Thanks for the comment and you make a valid point. You don't have to look to hard to find instances where the courts have been less than neutral. Jeremy Thorpe and Jeffrey Archer are two that spring immediately to mind. The best you can say in an A Level Essay is that *it's not as bad as it was*. If you want to go into that in more detail, that would be a cracking uni thesis and once you've finished I'd be delighted to read it. Thanks again and stay curious!
Is it about policy or law?
Hi. Not sure what you really mean, but judicial review is always about whether or not this of that is compatible with law. Hope that answers your question and thanks for the interest!
@@drfegg288 Exactly. So was confused when this presentation focused on policy review.
@@afrofeast really? there might be some aspects of policy that submit to JR - I'm thinking HS2 where the consultation was found to be unlawful ... is that what you had in mind?
Can I email you?
about what?
@@drfegg288 Could have just said yes and you would find out.
@@sohaiba5281 I could have, but I am not in the habit of giving out my email to anyone asking for it. Are you? In which case, I have some very excited investment opportunities you don't want to miss. Just send me your email and bank details (it's a technicality, don't worry.)