What is judicial review in terms of Human Rights Act?
Judicial review means a claim to review a “decision, action or failure to act... in the exercise of a public function”. The Human Rights Act 1998 (HRA) added to the judicial review jurisdiction of the courts, as it gave them more scope to review, because it imposed obligations on “public authorities”. As the HRA imposes direct obligations on public authorities i.e. “a person whose functions are of a public nature” (such as the government and their staff) this allows for discretion to review whether an act is of a ‘public function’. It is effectively left to the courts to decide whether or not they will review a case by deciding whether or not it concerns functions of a public nature. In essence, they can “pick and choose” whether to review a certain case on this basis. This has led to much debate and somewhat convoluted case law; ultimately judicial review in terms of the HRA has meant that the court will intervene by deciding whether an action is of a public function and thus amenable to review. As all laws must be interpreted and given effect compatibly with the HRA, it is debated that this effect has also extended the scope of judicial review of the courts.
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