According to Tayob Kamdar, director, dispute resolution practice at Cliffe Dekker Hofmeyr law firm, the foremost common law grounds of review are lawfulness, symptomatic unreasonableness and procedural fairness. The common law grounds for review are fairly similar to the grounds of review listed under the Promotion of Administrative Justice Act, No 3 of PAJAexcept that the common law grounds are not as far-reaching or well-developed. Grounds for judicial review Section 33 1 of the Constitution entitles everyone the right to administrative action that is lawful, reasonable and procedurally fair.
More Essay Examples on Law Rubric The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself.
The three grounds are mere indications: The approach of the Administrative Court The approach of the courts to public law disputes, and the development of special procedures for handling judicial review claims have a number of important practical consequences.
Illegality Decision-makers must understand the law that regulates them.
Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond its powers. This arises, for example when the legislation relating to a public body does not include the necessary power or has precise limits on when the power can be used.
Sometimes legislation allows the exercise of a wide and seemingly unrestrained discretion by the public body, or provides that a duty should be discharged in certain circumstances, but does not prescribe a particular process for determining whether those circumstances arise in an individual case. Here, illegality can occur where the action, failure to act or decision in question violates the public law principles set down by the courts for processes of this kind.
These principles require public bodies to: Ensure that they have not fettered their discretion by for example applying a very rigid policy as if it were legislation. Bromley Council v Greater London Council3.
A Conservative-controlled council sought certiorari to quash this decision, claiming that the GLC had acted ultra vires. Lord Denning MR said all three members of the Court were interested on all sides.
However, neither side had made an objection to their hearing the case. Any Court of Appeal would have been in the same position. Faced with the requisition of their factory by the war-time government, the factory owners raised a judicial review action to challenge the legality of the requisition order.
The order had been made under the auspices of the Defence General Regulationswhich authorised the Commissioners of Works to requisition such land as they deemed necessary in the national interest. The factory owners sought to argue that the requisition was invalid because the order had not in fact been signed by the minister, but by an official within the Ministry of Works and Planning.
It should be emphasised that the essence of the Carltona doctrine therefore lies in the elision of the identity of departmental officials with the relevant Minister. The case is considered significant in constitutional terms for its ruling on the extent of Ministerial prerogative powers.
The Criminal Injuries Compensation Scheme was set up under Ministerial prerogative powers to provide ex gratia compensation payments to victims of crime. Compensation was assessed on an individual basis by the Criminal Injuries Compensation Board.
However, the government rather than implementing this legislation amended a non-statutory tariff based scheme under the royal prerogative. This tariff based scheme would save money by awarding less compensation.
A trade Union sought judicial review of the decision of the Home Secretary not to bring into force the compensation scheme in the Act. The benchmark decision on this principle of judicial review was made as long ago asin the Wednesbury case6: The onus is also on the claimant to establish irrationality or perversity.
However, the threshold will be a lower one, that of proportionality, when European Union law or Human Rights Act breaches are involved. In general terms, the concept of 6. One approach is to ask: Is it necessary, in the sense of being the least intrusive means of achieving the aim?
The onus also lies upon the State to show that these conditions can be met. But that being so, is the rest of the bylaw bad? There is plenty of authority for saying that if a bylaw can be divided, one part may be rejected as bad while the rest may be held to be good.
In the present case there is, I think, no difficulty whatever in severing the bylaw.Judicial Review: The power enables the judicial branch to act as a check on the other two branches of government.
Jurisdiction: The power to speak the law. In Rem Jurisdiction: Court can exercise jurisdiction over property that is located within its boundaries.
Substantive grounds are those grounds of judicial review that purport to criticise the overall basis or substance of a decision by a public body – while procedural grounds are concerned with addressing flaws in the manner in which a decision by a public body was actually made.
SPICe Briefing Judicial Review 8 July 16/62 Sarah Harvie-Clark Judicial review is the process by which a court reviews a decision, act or failure to act by a who can bring an action for judicial review, what the grounds of judicial review are, and the remedies that can be awarded by the court if an action for judicial review is.
Grounds Of Judicial Review The Board of Transport (BOD) is a public body due to the fact that its source of power is derived from statute ((fictitious) Transport Act).
[ 1 ] Therefore, the validity of their decisions is challengeable under judicial review. This ground of judicial review is based on the principle that administrative authorities must correctly understand the law and it limits before any action is taken.
Court may quash an administrative action on the ground of ultra vires in following situations. 2. Overview of Judicial Review. 1. A general overview of judicial review can be divided into the following topics, of which the second (Grounds of Review) forms the focus of today’s presentation.