...Judicial Review: proposals for reform December 2012 Consultation Paper CP25/2012 Consultation start date: 13 December 2012 Consultation close date: 24 January 2013 Judicial Review: proposals for reform Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty December 2012 Cm 8515 £16.00 © Crown copyright 2012 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or email: psi@nationalarchives.gsi.gov.uk Where we have identified any third party copyright material you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to Michael Odulaja, Administrative Justice, Court and Tribunal Fees and Coroner’s Policy Team, Ministry of Justice, Post Point 4.34, 102 Petty France, London, SW1H 9AJ. This publication is available for download at www.official-documents.gov.uk and on our website at www.justice.gov.uk ISBN: 9780101851527 Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID 2529331 12/12 Printed on paper containing 75% recycled fibre content minimum. Judicial Review: proposals for reform Contents Foreword 1. Introduction 2. Background 3. The case for change 4. Time limits for bringing a claim...
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...Judicial review is the power of the Supreme Court to decide whether or not a law is constitutional. The Supreme Court has the power to say that a law that Congress passed violates the Constitution and is therefore invalid. But when should the Court do this? When should it overturn a law that has been passed by Congress which, unlike the Supreme Court, has been elected by the people? This is where judicial philosophy comes in. There are generally said to be four judicial philosophies that come in two pairs. First, there are the philosophies of loose constructionism and strict constructionism. Strict constructionism holds that the Supreme Court should interpret the Constitution very strictly. If the Constitution does not say (for example) that there is a right to privacy, then there is no such right. Loose constructionism says that the Court should go more by the general meaning of the Constitution, not by its exact words. Therefore, a loose constructionist would say that the Constitution implies that we have a right to privacy and therefore we do have that right. Second, there is judicial activism and judicial restraint. Judicial activists believe that judges should strike down laws relatively often. If the Court thinks the law is unconstitutional, it should not hesitate to strike it down. Those who believe in judicial restraint think the Court should not strike laws down very often. Instead, the Court should generally let Congress do what it wants because Congress...
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...Further provision with respect to the liability of the railway administration as a carrier of luggage 74. The railway administration shall not be responsible for the loss, destruction or deterioration of any luggage belonging to or in charge of a passenger unless the railway servant has booked and given a receipt therefor. Further provision with respect to the liability of the railway administration as a carrier of articles of special value 75. (1) When any articles mentioned in the second schedule are contained in any parcel or package delivered to the railway administration for carriage by the railway, and the value of such articles in the parcel or package exceeds three hundred Taka, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared or declared them at the time of the delivery of the parcel or package for carriage by the railway, and, if so required by the administration, paid or engaged to pay a percentage on the value so declared by way of compensation for increased risk. (2) When any parcel or package of which the value has been declared under sub-section (1) has been lost or destroyed or has deteriorated, the compensation recoverable in respect of such loss, destruction or deterioration shall not exceed the value so declared, and the burden of proving...
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...Court and Judicial Review Should the Supreme Court's power of judicial review be strictly limited by a constitutional amendment? Yes, the Supreme Court’s power of judicial review should be strictly limited to the constitution; because their judicial power is in all cases, in law and equity, arising under the constitution. Meaning they are over stepping their initial jurisdiction and have been given the power to have judicial reviews, even though it’s unconstitutional. The only power the Supreme Court is supposed to have is; all cases affecting ambassadors, or the public ministers and consuls, and those in which a state shall be party in the Supreme Court shall have original jurisdiction as stated in article III section 2 of the constitution. The Supreme Court is supposed to be the weakest of the three branches of government. The legislative, and executive branches are supposed to control the judiciary branch, even the states are supposed to have more say than the court. But they have been made more powerful and they are telling the legislative and executive branches what to do. There is no such system of checks and balances any more that protect the states and people when most government branches, are acting in cohorts with one another, eroding and destroying the rights and powers of the states and we the people. Even if the system was working right; who is watching and how will they stop the court from being unconstitutional? Every time the court holds judicial review it commits...
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...Kfkjmtgjtjhjyutg Supreme court and judicial review Supreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court and judicial reviewSupreme court...
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...Court and Judicial Review Should the Supreme Court's power of judicial review be strictly limited by a constitutional amendment? Yes, the Supreme Court’s power of judicial review should be strictly limited to the constitution; because their judicial power is in all cases, in law and equity, arising under the constitution. Meaning they are over stepping their initial jurisdiction and have been given the power to have judicial reviews, even though it’s unconstitutional. The only power the Supreme Court is supposed to have is; all cases affecting ambassadors, or the public ministers and consuls, and those in which a state shall be party in the Supreme Court shall have original jurisdiction as stated in article III section 2 of the constitution. The Supreme Court is supposed to be the weakest of the three branches of government. The legislative, and executive branches are supposed to control the judiciary branch, even the states are supposed to have more say than the court. But they have been made more powerful and they are telling the legislative and executive branches what to do. There is no such system of checks and balances any more that protect the states and people when most government branches, are acting in cohorts with one another, eroding and destroying the rights and powers of the states and we the people. Even if the system was working right; who is watching and how will they stop the court from being unconstitutional? Every time the court holds judicial review it commits...
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...Glori D Vittone BUSS 213 DATE \@ "MMMM d, y" February 18, 2015 Case Study #1 1.The federal Elections commission filed a summary judgement motion with the District Court to have the case brought by Citizens United dismissed. What is a summary judgement motion and why is it appropriate in this case? Summary judgement motion is when the court is asked to dismiss a case immediately. Its appropriate in this case because the film, Hillary: The movie, created by Citizens United clearly violates the McCain-Feingold Act. 2. Citizens United filed a request for an injunction in the same case. What is an injection and why is it appropriate in this case? An injunction is a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act. In this case is appropriate because the court is asking to forbid the further distribution of the film Hillary: The Movie. 3. What is at stake in the balancing act generally involved in the law-making process in a case like this? Balance in this case is between the spirit and the letter of the McCain-Feingold Act. 4. What is the negative rights theory of ethics and how does it impact this case? This theory argues that the rights created by documents are not real or just self made privileges that people created to protect themselves in case something goes wrong. In this case they argue that their right of free...
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...Constitutionalism has a different meanings and one of them is that ; Constitutionalism refers to a system of government based on a constitution, a government which demonstrates adherence to the principles of the constitution. Constitutionalism can also be defined as a modern concept that desires a political order governed by laws and regulations. Within the concept of constitutionalism is the idea of limited, open, transparent and accountable government which must truly represent the will of the people and not simply smoke-screen the will of the people. Mwansa (2013:10),explains that it is a complex ideas, attitudes and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law. Constitutionalism is there to tame wayward governments that see no limits to their powers or simply ignore such limits in the guise of pursuing a common or greater good. In a state that recognizes the importance of constitutionalism, the leaders are bound to observe both limitations of power and the procedures which are set out in the supreme constitutional law of the community. Constitutionalism ensures that governmental powers are limited beyond theory, and in practice. Constitutionalism goes beyond a good constitution and beyond constitutionality of governmental action or a country’s laws.Constitutionalism is a concept associated with the political theories of John Loce and the founders of the American republic and equated...
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...(DQ1) Do you think the judicial branch is the least dangerous branch of government, as the video discusses? Why or why not? Discuss one example you think demonstrates the power of the Supreme Court. Jina’s Response: The Judicial Branch was called "the least dangerous branch" by Alexander Hamilton because they could not be influenced by one side or another, simply have the job of give the "right and necessary" decision on the cases. They can not or will force, their decision will be for judgement. Thus, it's roles and power would be limited. Although, the power is for judgement, they are truly slow. When a case is chosen, it pass months and more months after the decision can be reached, and for me, if they are there for judgement, why the wait?; I understand, the cases are several, but taking months for a decision is just "ridiculous" for me. The opinions about the power they have are really disperse. Some think the Judicial Branch has not power at all, as Alexander Hamilton once said, just for judgement, because the Congress has control over almost all. But many others think that the Judicial Branch it is the most dominant branch of the government, because its power influence each individual of this Nation. I agree, in part, the Judicial Branch has become very powerful, but surely is not the most powerful. Other branches of the government have clearly more power and control of many issues of the society. For example the Executive Branch or the Congress...
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... Winston Churchill Introduction:- A Constitution Bench led by Cheif Justice Sabharwal brought about the first binding change in the law of privileges in India in Raja Ram Pal V The Hon’ble Speaker, Lok Sabha. The Court held that the Power of Judicial Review under Article 13(2) would extend to the privileges on a case to case basis overruling its earlier decisions. In Raja Ram Pal the Court said: “That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ.' In the instant case the primary question before the court was whether in exercise of the powers, privileges and immunities of the members of the parliament are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists, is it Subject to judicial review and if so, the scope of such judicial review and whether the court has the jurisdiction to try such a case. The aforesaid question have arisen against the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of accepting monetary consideration in relation to their functions as MPs. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble...
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...one of which is a nongovernmental private party. Plaintiff (254) Defendant (254) Federal jurisdiction (255) U.S. district courts (255 – 256) U.S. circuit court of appeals (256) U.S. Supreme Court (256) Original jurisdiction – A defined set of cases that avoids a lower court and goes directly to the supreme court. Appellate jurisdiction (256) Judicial Powers and Limitations (256 – 261) Judicial review –The power of a court to overturn a law or official government action because it is deemed unconstitutional. Marbury v. Madison (257) Judicial restraint (258) Judicial activism –A conception of judicial review that believes courts should overturn laws or government actions even if there is no clear constitutional directive. Standing (260) Precedent – a principle articulated in a previous case that judges use to decide current cases. Judicial selection (261 – 267) Senatorial courtesy – The practice whereby a president consults with senators in his party to find potential lower court vacancies that occur in the senator’s states. Measuring Equality: Presidents’ Records of Minority Judicial Appointments to the Lower Federal Courts (265) Decisionmaking On the Supreme Court (268 – 272) Brief (268) Amicus curiae (friend of the court) briefs – briefs filed by parties that have an interest in the outcome of a case but are not directly involved in it. Oral...
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...The US Constitution, written in Philadephia in 1787 by the Founding Fathers was the product of the revolutionary war of independence, with it’s foundations strongly influenced by the works of political theorists such as Montesquieu and Locke. The Founding Fathers favoured a government that prevented any individual or particular group becoming tyrannical. Furthermore, they strongly opposed the notion of excessive government power, seen as the potential threat to individual freedom, wanting to protect minorities as well as the population as a whole, from arbitrary or unjust rule. Consequently, the Founding Fathers outlined main provisions within the US constitution in order to avoid tyranny: the separation of powers, a federal structure of government and also providing citizens inalienable and entrenched rights through the implementation of the Bill of Rights. Arguably, these provisions as a result mostly ensure, as the Founding Fathers had hope to achieve, limited government, in so much as the size and scope of the federal government is limited to an extent in which it is necessary only for the common good of people. The separation of powers prevalent in the USA, whereby political power is distributed between the executive, the legislature and the judiciary branches of government, were adopted from the Founding Fathers by the principles of Montesquieu, who argued for a separation of powers into legislative, executive and judiciary branches in order to avoid tyranny. This framework...
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...Parliamentary sovereignty, once the dominant principle of the UK Constitution, is now under considerable pressure. Discuss this statement with reference to the UK’s membership of the EU, the devolution acts of 1998, the Human Rights Act 1998 and recent judicial comments on the Rule of Law. "Certainly we want to see Europe more united… but it must be in a way which preserves the different traditions, parliamentary powers, and sense of pride in one's own country." Margaret Thatcher Over the course of the years many prominent figures such as politicians and academic writers have been concerned with the diminishing of Parliamentary sovereignty. “Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.” Historically, due to the lack of a single codified constitution in the UK, the Westminster Parliament is the most powerful and influencing factor on the British political frontier. As opposed to America where the constitution dominates US politics, and legislation can be deemed unconstitutional and revoked by the US judiciary. However, since further integration into Europe incorporating The European Communities Act 1972, The Human Rights Act 1998, European Conventions on Human Rights...
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...Brinks and Gauri define legalization of policy not depending on courts making final all-or-nothing decisions, thereby usurping the functions of more representative institutions, instead, it recognizes the open-ended and interactive nature of judicial decision making, suggests that policy making power is not zero sum across government branches and does not smuggle in normative judgments about the proper province of courts. Argue that courts more often add a relevant actor and relevant considerations than seize decision-making power from other actors Legalization as the participation of legal actors and the use of legal concepts in policymaking processes. Public policy litigation legalization- the extent to which courts and lawyers become relevant actors and the language and categories of law and rights...
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...of the will of the American people. The Supreme Court’s decisions are not supreme over the Constitution. The answers the Supreme Court gives are very important to the stability of the law so necessary for good government. Article VI of the Constitution, says that “The Constitution, and the laws of the United States made in pursuance thereof…shall be the supreme law of the land…” The Constitution created the three branches of government with limited powers to each. The notion of “judicial supremacy” is contrary to the framers’ understanding of the judicial role. The power of judicial review does not imply judicial supremacy. When the Constitution was written, many believed that the Court had no power of “judicial review.” According to the Legal Information Institute, Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take...
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