ABSTRACT
This topic is very extensive and is often taught as a separate course on administrative law in the second or third year of degree courses. However, on constitutional law courses, it is of a manageable size and sometimes attracts two questions in exams – which can make it a good return for your revision (check your past papers). In this area, extensive knowledge of case law is clearly necessary, but must be bound together and informed by a grasp of basic principle. Questions can appear as either essays or problems and quite often both appear in one paper. Essays will generally demand an evaluation of the effectiveness of judicial review in one form or other. If a problem question asks the student to advise clients, it is important to remember standing, amenability, procedure and remedies, bearing in mind the changes introduced by the Civil Procedure Rules (CPR). Some papers treat natural justice as a separate topic, and this has been reflected in the questions given below. In theory, a problem could combine traditional judicial review issues with questions arising under the Human Rights Act 1998 (HRA). However, the textbooks and most courses treat the HRA separately and examiners seem generally to be setting questions that test the student’s knowledge of the English principles of judicial review, without confusing this with possible claims brought under the HRA – although again, you should check past papers on this. In addition, answering a problem question on the HRA would generally require knowledge of the European Convention on Human Rights (ECHR) case law, particularly in relation to Art 6, which first-year students would not generally be expected to have. There is, in particular, a very complex legal issue as to how far judicial review of a decision taken by a body that does not itself satisfy the requirements of Art 6 of the ECHR can provide a level of protection such that, overall, Art 6 is satisfied. Therefore, the answers given to the problem questions here do not include possible HRA points, except in one important area. The HRA has already had the effect of changing the ordinary English law on bias, with the courts accepting that Art 6 of the ECHR requires a modification of the previous Gough test. This is therefore included. Additionally, essay questions on judicial review may well ask for an analysis of how the HRA has changed the standard of substantive review in human rights cases. Such a question is included here.
