LS9: Judicial review

Question 1

What is the purpose of judicial review?

Answer 1

Used to challenge actions of government ministers.

Question 2

What are the 3 grounds for judicial review?

Answer 2

Illegality
Irrationality
Procedural impropriety

Question 3

Is judicial review an appeal?

Answer 3

No, it is a review - it challenges the legality of the decision. The basis needs to be on it being legally flawed, rather than just disagreeing with the decision.

Question 4

Under which constitutional principle does judicial review give effect to?

Answer 4

The rule of law, that noone is above the law, not even government ministers.

Question 5

Does judicial review look at primary and secondary legislation?

Answer 5

No, only secondary. Primary legislation is not administrative action.

Question 6

How does judicial review act as a check and balance?

Answer 6

The judiciary makes sure the executive does not overstep its bounds.

Although the judiciary needs to make sure to not be interfering on political decisions made by politicians.

Question 7

In judicial review, what is illegality?

Answer 7

Illegality is where a public body acts without the power to do so or misinterprets the scope of its power.

When the decision maker lacks the power to act as they attempt to do.

Question 8

What does ultra vires mean? (Illegality)

Answer 8

It means beyond their powers - in reference to judicial review - illegality when public bodies are acting outside their powers.

Question 9

When is improper purpose grounds for judicial review under illegality?

Answer 9

When a public body exercises a power it does have, but to achieve an aim that Parliament didn’t approve the powers for. - Illegality in judicial review.

Question 10

When does judicial review fall under illegality?

Answer 10

Improper purpose
Relevant and irrelevant considerations
Failure to exercise discretion:
- Unauthorised delegation
- Adoption of policy
Acting incompatibly with ECHR

Question 11

When are relevant/irrelevant considerations grounds for judicial review under illegality?

Answer 11

If, when making decisions, the public body takes into account considerations which are irrelevant or fails to take into account considerations which are relevant.

The court will look at the statute that provides the discretion and consider its overall aims and objectives of the Act.

Question 12

When is failure to exercise discretion grounds for judicial review under illegality?

Answer 12

A decision maker must not hamper themselves from acting with discretion on discretionary power (i.e. allowing themselves to choose). Acts often give discretionary power so the decision maker can choose between potential options.

2 distinct ways that decision maker can fail to exercise discretion:
- Unauthorised delegation
- Adoption of policy

Question 13

What is unauthorised delegation? (Illegality)

Answer 13

Parliament delegates its power to the minister. The minister cannot the sub-delegate, unless there is statutory authorisation within the Act.

Sub-delegation is acting ultra vires - the body which has received the sub-delegation is also ultra vires.

Principle is relaxed when it comes to Ministers giving tasks to civil servants.

Question 14

When is adoption of policy part of judicial review? (Illegality)

Answer 14

When a public body/minister adopts a policy which unduly constrains their decision-making.

Risk is that although they can adopt policies, if a policy stops decision maker from having choices, that is unreasonable and unlawful.

Courts will look at the context of the policy - i.e. it would be inappropriate to apply a general policy when each individual circumstances of the applicant are of paramount importance.

Question 15

What happens when a public body acts in a manner incompatible with an ECHR right? (Illegality)

Answer 15

It is illegal, the HRA 1998 imposed an additional requirement that power be interpreted and exercised in accordance with ECHR rights.

Question 16

In judicial review, what is procedural impropriety?

Answer 16

When the public body makes a decision that isn’t in accordance with fair procedure.

Question 17

What are mandatory and directory requirements and what are the consequences of not following them?

Answer 17

An Act may only dispense certain powers subject to procedural safeguards.

• Mandatory requirements = must be complied with. If not, then decision may be declared ultra vires.
• Directory requirements - (discretionary) may be waived in certain circumstances.
  If directory requirements, then trying to comply with procedure would be enough - in some cases total non-compliance wouldn’t affect what has been done (the decision).

Question 18

In judicial review, what is ‘legitimate expectations’?

Answer 18

If a public body has made a lawful representation to an individual about how it will behave in the future, this can create a legitimate expectation.

Question 19

Can legitimate expectation be implied through a course of conduct?

Answer 19

Yes, past actions can amount to legitimate expectation.

Question 20

Will courts always hold public bodies to their legitimate expectations on procedural fairness?

Answer 20

No, legitimate expectation is not protected. Courts won’t always hold public bodies to their representations. Courts will need to consider both the individual interest in the protection of the legitimate expectation and any public interest overriding it.

Question 21

What does audi alteram partem mean?

Answer 21

To hear the other side. The requirement to provide a fair hearing.

It is a maxim of natural justice.

Question 22

What does nemo iudex in causa sua mean?

Answer 22

Noone shall be a judge in their own case. The rule against bias.

It is a maxim of natural justice.

Question 23

What are the 4 main things to keep in mind when considering one of the common law rules of procedural fairness: the right to a fair hearing?

Answer 23

1. Notice of decision-making (if someone knocks down your house, you should have notice of it)
2. Knowledge of the case against you (you should know what the case against you is)
3. Legal representation (natural law doesn’t necessrily need someone to have legal representation, but it depends on what is at stake)
4. The giving of reasons (courts are increasingly adopting the view that sentences should have the reasons behind)

Question 24

What are the two common law/natural justice rules of Procedural fairness?

Answer 24

1. right to a fair hearing
2. the rule against bias

Question 25

Which ECHR Article has a prohibition on bias?

Answer 25

Art 6 ECHR, requiring that individuals are entitled to have their rights determined by an independent and impartial tribunal.

The right to an independent and impartial tribunal under Article 6 ECHR

Question 26

What is actual bias?

Answer 26

Actual bias is when a judge has a stated outwardly known interest in the subject matter. They will be immediately disqualified from making decisions on that case.

Question 27

What kind of interest constitutes bias?

Answer 27

Direct interest, e.g. financial interest of the decision maker, or someone close to them. Usually finance related, but can be related to sitting on boards of companies that are involved in the decision.

Question 28

What is the presumption of bias?

Answer 28

When trying to prove actual bias, it created a new rule. Anyone that can be shown to have a direct interest in the subject matter cannot be involved in the decision.

Question 29

What is the appearance of bias?

Answer 29

Rule applies where there is a connection between the decision maker and the case which might give rise to the belief that the decision maker is partisan (biased).

Question 30

What are the three limbs of bias?

Answer 30

1. Actual bias
2. Presumption of bias
3. Appearance of bias

Question 31

Most of English common law and Art 6 ECHR agree concerning procedural fairness. However, one aspect does not agree. What is it?

Answer 31

Common law on bias only applies to judges.

Art 6 requires civil rights and obligations (administrative decision-making) to be procedurally fair, e.g. private law dispute in contract, tort etc. These decisions are made not by judges, but by administrative officials, who aren’t ‘independent’ as they sit in wider government.

Solved by ‘curative effect’.

Question 32

What is the curative effect?

Answer 32

It is the judicial response to challenges of ‘administrative decision-makers’ being bias by sitting in wider government.

It means that although those decision-makers were not an independent and impartial tribunal, there was a right to seek judicial review by a court which was independent and impartial.

The availability of judicial review in this case operated to “cure” the procedural defect in the original decision.

Question 33

In judicial review, what is irrationality - Wednesbury unreasonableness?

Answer 33

When a decision maker makes an irrational decision ‘so unreasonable that no reasonable authority could ever have come to it.’ Lord Greene.

This ground for judicial review is based on the substance or outcome of a decision, instead of decision makers’ power or procedural safeguards).

Question 34

What were the circumstances in the Associated Provincial Picture Houses v Wednesbury Corporation [1948]?

Answer 34

Under the Sunday Entertainment Act 1932, the Wednesbury Corporation banned children under 15 from going to the cinema unless they were accompanied by an adult in order to encourage them to go to Sunday school. The court decided that the decision (not the imposition of the condition) was ‘so unreasonable that no reasonable authority could ever have come to it’ (Lord Greene).

Question 35

When assessing whether actions of a public body interferes with ECHR protected rights, which rights allow limited interference?

Answer 35

Qualified rights. These are rights where interference can be permitted on various ground prescribed by law.

Absolute rights mean that courts cannot intervene.

Question 36

What is the proportionality approach?

Answer 36

One of the early questions for the courts under the HRA was how review for incompatibility with a Convention right should be approached: what standard of review should be applied and to what extent (if at all) did this differ from the common law Wednesbury test. It differs in the following:

1) Assess the balance of the decision, not just the reasonableness.

2) Pay attention to the relative weight given to interests and considerations

3) Must meet a social need AND make sure to question whether interference was really proportionate to the legitimate aim being pursued.

This approach is favoured in the ECtHR. In the UK courts today, it is felt that the time is not yet ripe to consider common law proportionality, but the possibility remains open for the future.

Question 37

What is substantive legitimate expectation?

Answer 37

It is a developed version of legitimate expectation of procedural fairness.

It now includes the substance of decisions, e.g. makes the public body stick to their promise.

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural…the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power”.

Question 38

Is it possible for a court to protect a legitimate expectation of a substantive benefit?

Answer 38

Yes, it is. This is not automatic, not all substantive legitimate expectations will be protected - depends on circumstances.

The court weighs fairness of protecting the expectation of the individual against any countervailing public interest advanced by the public body.

1) FEW PEOPLE. Court is more likely to enforce public body’s promise if expectation is confined to one person or a few people, rendering the promise similar to a contract.

2) RELIANT. Depends on how reliant upon the promise the claimant(s) have been. If the claimant has relied upon the promise to their detriment, the courts will likely protect that promise.

3) PUBLIC INTEREST. Courts will examine conflicting public interest - why does the public body wish to act contrary to their representation?

Question 39

What is a requirement of a legitimate expectation, whether it is for procedural fairness or substantive benefit?

Answer 39

It must be clear and unambiguous, usually an explicit verbal representation and occasionally a course of conduct.

Question 40

What is the difference between legitimate expectation for procedural fairness and legitimate expectation for substantive benefit?

Answer 40

Both: When a public body makes a (lawful) representation to an individual concerning how it will behave in the future.

Procedural is an expectation that a procedure will be followed.

Benefit is that a particular outcome would be applied.

Question 41

What is deference?

Answer 41

The idea behind deference is that courts should try and respect the original decision maker and not interfere with the decision, unless decision is outside an acceptable range.

Assumption is that political decision maker is usually better placed to make the decision rather than the court.

Question 42

Which areas of law rarely attract deference?

Answer 42

Human rights, courts and justice will rarely attract deference, as the courts regard it as within their expertise.

Question 43

What are the two stages of judicial review?

Answer 43

1) Permission stage: Applicants must obtain permission to apply, to:

• weed out cases with little chance of success
• the standing of the applicant.

Conducted through affidavits.

2) Full hearing stage.

Question 44

What is the time limit for judicial review applications?

Answer 44

Strict three month time limit. Time starts at the point where the decision had legal consequences.

Courts can also extend limit for god reason or dismiss application on grounds of undue delay in making the application.

Question 45

Why does a person need ‘locus standi’ for judicial review?

Answer 45

Locus standi = good standing.

Someone will have standing if they are deemed to have a ‘sufficient interest’ in the decision (if they’re affected by the decision in some way).

Can come from individuals or groups/organisations (e.g. Greenpeace).

Question 46

What is a third-party intervention?

Answer 46

Organisations can make third-party interventions in judicial review proceedings commenced by others.

Claims for judicial review often raise issues of public significance and go beyond the interests of the parties involved. Many of these cases affect disadvantaged or vulnerable groups whose interested are represented by voluntary sector organisations. These organisations have specialist knowledge about how decisions can impact upon the group they represent.

Third-party interventions are a method by which a person or organisation not otherwise involved in the litigation may submit specialist information or expertise to the court. This offers a route by which such organisations may make an effective contribution to the court’s decision-making process.

Question 47

What are the statutory controls on third-party interventions in judicial review?

Answer 47

s87 Criminal Justice and Courts Act 2015 is designed to provide a financial deterrent to third-party interveners (e.g. voluntary sector organisations with very limited funds). Under s87 third-party interveners in judicial reviews may have to pay other parties’ costs if certain conditions are met. These conditions include unreasonable behaviour by the intervener and if the intervener’s actions have not been of significant assistance to the court.

Question 48

Who are amenable to judicial review?

Answer 48

Only public bodies, i.e. a government department or some other body which derives powers from statute.

Question 49

What is an ouster clause and a limitation in reference to judicial review?

Answer 49

Ouster: Parliament have included provisions in statutes which attempt to make the administrative authority immune to judicial review.

Limitation: Attempt to limit judicial review to a narrow time frame.

However, courts take a narrow view when it comes to excluding the courts. Words must be ‘clear and explicit’ to restrict the courts.

Question 50

What are the public law remedies for judicial review?

Answer 50

1) Quashing order - removes decision and places the applicant back in the same position as before the decision.

2) Mandatory order - compels a public body to perform a duty. Failure to comply is contempt of court.

3) Prohibiting order - an order to desist from an ultra vires course of action (public law, would be an injunction). Failure to comply is a contempt of court.

Question 51

What are the private law remedies for judicial review?

Answer 51

1) Declaration - statement of the law and rights of the parties. Under HRA 1998, courts can grant a declaration of incompatibility.

2) Injunction - often used on an interim basis to prevent a challenged decision pending the outcome of the review.

3) Damages - not usually awarded in judicial review, unless:

i) there is a paralell private law claim to the judicial review app. Unusual.

ii) available by way of action against a public body (e.g. in tort).

Question 52

Which tribunal has similar powers to judicial review?

Answer 52

The Upper Tribunal has a statutory jurisdiction equivalent to judicial review which they can exercise in certain classes of case. Certain judicial review claims can be transferred from the High Court to the Upper Tribunal.

At present, three classes of judicial review cases are heard in the Upper Tribunal:
(1) challenges to the First Tier Tribunal (Criminal Injuries Compensation);
(2) challenges to unappealable decisions of the First Tier Tribunal; and
(3) certain classes of immigration and asylum claim.