Administrative Law

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mia.berny
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#1
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#1
Hey guys! Can anyone help me with this essay title please??
"arguments for and against codifying in statute the common law principles of Judicial Review"
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Puddles the Monkey
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#2
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(Original post by mia.berny)
Hey guys! Can anyone help me with this essay title please??
"arguments for and against codifying in statute the common law principles of Judicial Review"
Heya, I'm going to put this in the sciences forum for you as you should get more responses there.

You should also check out the forum to see if there's any other threads there which might be helpful to you! http://www.thestudentroom.co.uk/forumdisplay.php?f=51
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mia.berny
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#3
Thank you so much!!
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GeneralStudent95
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You should probably look at the debate surrounding the constitutional legitimacy of judicial review. The traditional justification of judicial review is the ultra vires doctrine, which is directly linked to Parliamentary intent. If Parliament codified all of the principles of judicial review in a statute then there would be a clearly ascertainable basis for arguing that judicial review was legitimised by Parliament and therefore in line with Parliamentary sovereignty as opposed to being in opposition to it.

However, if you adopt the common law theory (Laws LJ writes about this) then you would trust the common law to develop judicial review on an ad hoc basis to suit the developments of the day; there is no need for Parliamentary assent through codification. The common law has developed.

Then you look at Elliot's modified ultra vires view.

Then consider some of the other arguments:

(1) What would this do to flexibility? It would make it more rigid and difficult to adapt. Is this a good thing?
(2) Would it make things more certain which is, always, a good thing for litigants and public bodies. (Green Light Theory of Administrative Law)
(3) Codification is remarkably easy to argue for, but very difficult to do. Some areas of judicial review aren't clear in the common law, and some are in a state of transitory flux (see the recent Pham judgment and the possibility of moving towards proportionality as opposed to Wednesbury) - would it be better to leave these issues to be sorted by judges instead of the executive / legislature.

Remember finally that judicial review is a means by which the judiciary can check the power of the executive and, to an extent, the legislature. If the executive and legislature work in tandem to pass a bill codifying all judicial review principles they would probably draw it quite restrictively; the government doesn't like to be challenged.
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mia.berny
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#5
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#5
(Original post by GeneralStudent95)
You should probably look at the debate surrounding the constitutional legitimacy of judicial review. The traditional justification of judicial review is the ultra vires doctrine, which is directly linked to Parliamentary intent. If Parliament codified all of the principles of judicial review in a statute then there would be a clearly ascertainable basis for arguing that judicial review was legitimised by Parliament and therefore in line with Parliamentary sovereignty as opposed to being in opposition to it.

However, if you adopt the common law theory (Laws LJ writes about this) then you would trust the common law to develop judicial review on an ad hoc basis to suit the developments of the day; there is no need for Parliamentary assent through codification. The common law has developed.

Then you look at Elliot's modified ultra vires view.

Then consider some of the other arguments:

(1) What would this do to flexibility? It would make it more rigid and difficult to adapt. Is this a good thing?
(2) Would it make things more certain which is, always, a good thing for litigants and public bodies. (Green Light Theory of Administrative Law)
(3) Codification is remarkably easy to argue for, but very difficult to do. Some areas of judicial review aren't clear in the common law, and some are in a state of transitory flux (see the recent Pham judgment and the possibility of moving towards proportionality as opposed to Wednesbury) - would it be better to leave these issues to be sorted by judges instead of the executive / legislature.

Remember finally that judicial review is a means by which the judiciary can check the power of the executive and, to an extent, the legislature. If the executive and legislature work in tandem to pass a bill codifying all judicial review principles they would probably draw it quite restrictively; the government doesn't like to be challenged.
Thank you so much for your help! You did make quite good points!
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