Judicial Review

Suggested constitution clause:

'Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.*

Any person with sufficient interest may claim in courts to review the lawfulness of -

- an enactment; or

- a decision, action or failure to act in relation to the exercise of a public function -

and upon such review, the Courts shall have the power to:

- declare provisions of enactments to be unenforceable by reason of their being incompatible with either the constitution or any other law* which the constitution declares to prevail over enactments;

- quash decisions and actions, prohibit actions and grant compensation to persons.'

*1 This is the judicial review principle as formulated by Lord Tom Bingham in his book The Rule of Law.

*2 This would include and EU law with direct effect to the extent that the constitution declares this to prevail over UK acts of Parliament.


Idea behind the draft clause:

Our system of judicial review of executive decisions is a relatively modern creation (I think about 1980) and was of course ushered in by ordinary statute.

My suggestion is that the right to review governmental and administrative decisions is so important that it should be elevated to a constitutional right to ensure that is cannot be removed by any single act of Parliament.

edited on Apr 18, 2015 by Ian Smith

Ian Smith Apr 5, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote to hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes for the holiday weekend!


Andrew Cullyer Apr 14, 2015

'All applications for review must be prompt and in any case not later than 3 months after the decision' 

This is a straight lift from current legislation and ensures that decisions can be made without worrying 12 months+ down the road its going to be challenged and overturned for instance if your building a bridge and you get a month within finishing it no one wants to have to tell you leave that were it is we have to stop.... 

Rob G Apr 14, 2015

I'm trying to work out whether this is a much broader provision than the current judicial review framework (which I think is a child of the common law rather than statute), or a narrower one!

At the moment strict conditions apply - that the person acting has gone beyond the power they were granted by Parliament or a council, or has acted in a way that was so unreasonable it shouldn't have entered their minds to do so. I'm not sure whether "lawfulness" would be restricted to the former, or go beyond the existing grounds. (I have in my mind a picture of a Venn Diagram, and I'm not sure whether all the circles overlap nicely...)

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