Faculty of Law

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FACULTY OF LAW

TRI 1, 2018/2019

UAL2612 – ADMINISTRATIVE LAW

(TUTORIAL 1, L1 SECTION)

Title of Assignment : Case Review

Coordinator/Lecturer        : Sir Amir Nur Ikhwan Bin Amernudin

Date Submitted                     : 25th January 2019

Contents

Council of civil service unions v minister for the civil service        2

Evolution,Development and foundation of judicial review        3

Grounds for challenge        15

Privative clauses        16

REFERENCES        17

Council of civil service unions v minister for the civil service

Judicial review is the strongest weapon that is available to citizens to avail themselves whenever their fundamental liberties has been violated.In the case of Council of civil service unions v minister for the civil service^[1] government issued and instruction to effect that staff at government communications headquarters would no longer be permitted to belong to national trade unions. No prior consultation with unions involved took place and those unions brought proceedings to determine the validity of the Government's actions. The Court of Appeal held that the government's prerogative action had been taken in the interests of national security and that since the ministers of the Government were the sole judges of what the national security required, their actions were not subject to judicial review.

On appeal: Held (i) irrespective of whether a power exercised directly under the prerogative was immune from judicial review, delegated powers emanating from a prerogative power were not necessarily similarly immune. Such delegated powers would, either expressly or impliedly, be defined, for example by reference to their object or the procedure by which they were to be exercised, with the result that such powers were subject to judicial control.The controlling factor in deciding whether the exercise of the power was subject to judicial review was the justiciability of its subject as opposed to whether its source was the prerogative. (ii) An aggrieved person was entitled to invoke judicial review if he showed that a decision of a public decision-making authority affected him by depriving him of some benefit or advantage which in the past he had been permitted to enjoy. Although GCHQ employees had no legal right to consultation, since 1947, when GCHQ was established in its present form, prior consultation had been the invariable rule when conditions of service were to be significantly altered. The unions' legitimate expectation of consultation gave rise to an obligation on the part of the minister to act fairly by consulting the unions before withdrawing the benefit of trade union membership. The minister's failure to do so prima facie entitled the unions concerned to judicial review of the minister's instruction.(iii) Where the Government sought to rely on reasons of national security to justify a decision or action, the courts would not accept a mere assertion to that effect, but would require evidence that the decision or action was taken for reasons of national security. However, the question whether the decision or action was in fact necessitated by requirements of national security was non-justiciable since the executive was the sole judge of what national security required and alone had access to the information that enabled that judgment to be made. The evidence was compelling that the minister acted without prior consultation because she reasonably believed that such process might precipitate disruption at GCHQ. The minister had shown that her decision was one that not only could reasonably have been based, but had in fact been based, on considerations of national security, which outweighed what would otherwise have been the reasonable expectation of prior consultation on the part of the unions. The appeal would be dismissed.

Evolution,Development and foundation of judicial review

In a wider sense, the higher courts have the impact to review issue judicially against the assessment of profession of public authority  inside their respective territories. The job of higher court is that to be observed closely whether the executive, legislature and lower courts obeying with the statutory and constitutional confinements. They are practicing their powers in the circle of the Constitution, if not really, to abstained them. Regularly, the higher court has the power of supremacy to review lower courts' rulings. The control of legal audit is conferred in the higher courts to characterize and appraisal legitimacy of a law or an order. The S.C.I.^[2] has straight out the constitutional lawfulness of statutes. Besides, the reviewing court can turn around any order checked on, maintain decision and even award damages to the person in question. Every illegitimate laws are invalid and void while waiting for Constitution itself altered and supply accommodation. The controls of judicial review, neither an appellate power, nor the revision power. So the higher court can't expressly dependent on the qualities of the judgment. It is the control of the Superior Court to analyze, that the authority is the proficient to takings conclusions, and the conclusion that has been taken complied with necessities of the provision in the equitable and reasonable way. The impact of judicial review is apprehensive encompassed by the rational mode and any sort of the constraint, implemented upon the structures of govt., if any disagreement has climbed therein to be made a decision by a judge on behalf of legal executive and the result will be interpreted as lawful instrument. Judicial review is the assurance by judiciary over aggravated impact of person. It's not an authoritative power of legal executive. Since the court has given assurance of citizens against the unfair authoritative decision, where test can be made in competent court. In modern state, the job of administrators is increasingly inventive in their area. They function as wisdom of monopoly where accordant need of cautiousness is required. In India like democratic nation where subjects are allowed to appreciate the freedom ensured under the Constitution. At the point when the whole administration is constrained by methodical government organs then enjoyment in freedom is addressed. In such positions, legal audit does not mean supremacy of legal executive. It ensures the protected constitutional supremacy of the provision of principle of law.The result of questionable and irrational heading of public society make dispute among the people and authority and subject to be test in the competent court. The obligation of the court is to give reasonable and fair ruling to the nationals. There isn't any contrast between the question that has emerged from common enactment and civil enactment, the gesture under which is be checked, subject to test by a distressed individual under the provision of the Constitution.

The western political considerations represent to extension and development in the arrangement of qualities like equality, equity, holiness and freedom in their way of life. The procedures and institutional structure both are essential and similarly significant to comprehend and settle these qualities. This improvement sets out the idea of separation of power. The contemporary idea of legal audit built up in the seventeenth century of England, where individuals trusted that the ruler is upstairs the rule; his ruling was tested and it was held that the ruler isn't upstairs the rule; he is excessively guaranteed by rule. The unbeatable bias, in spite of encroachment upon the state, connected with for the field of Public law by the court of common law. The procedure and practice were fortified by prevalent judges through acquiring of outstanding degree of public esteem and guarantee freedom of administrators. The American Supreme Courtof Coke, Chief Justice in the contradiction of Dr. Bonham remained collide with by law; he thought about that the judges are prevalent then the lawmaking body. Coke's confidence was concreted from his own insight in law. He murmured that the adjudicators are the complete authorities of what the Constitution speaks. Coke surrounded the judicially review convention that completed judges self-deciding. The sign of Coke that the judges may choose to invalidate statutes enacted by the lawmaking body, afterword built up the most operative missile in the armory of legal executive. The Coke expressed that once the act of Parliament against the common rights and aim of that act are intolerable to accomplish, at that point the common law will be controlled and such act of common law will be announced void.