7. Judicial Review Flashcards
(86 cards)
1
Q
What is JR?
A
Review of the lawfulness of governmental actions/decisions by the specialist Admin Court in relation to an exercise of a public function (QBD - High Court)
2
Q
The modern emphasis of JR is…
A
…the nature/character of the action being carried out (rather than where the power came from / the body which made it)
3
Q
What is JR not?
A
It is not a form of appeal
4
Q
Before issuing judicial review proceedings, what should a claimant do and how long does the defendant have to respond?
A
Send a letter identifying the issues in dispute, to which the defendant should respond within 14 days
5
Q
When should JR occur?
A
Only after exhausting any alternative remedies
6
Q
In judicial review, what are the courts generally concerned with, and not concerned with?
A
Concerned with: legality of a decision
Not concerned with: merits of a decision
7
Q
What are the 5 key concerns when considering JR?
A
- Amenability
- Procedural Exclusivity
- Standing
- Time limits
- Ouster and limitation clauses
8
Q
What does amenability mean?
A
If the decision is challengeable
9
Q
What does procedural exclusivity mean?
A
Is the decision in question only exclusively challengeable using the JR procedure? (O’Reilly v Mackman - struck out)
10
Q
What has been the effect of the CPR on procedural exclusivity?
A
More flexible since O’Reilly:
- substance over form
- less ready to strike out cases for technical reasons
In mixed public and private law cases (Roy v Kensington and Chelsea), JR may be pursued
But if the case is predominately public law, better to issue in Admin Court
11
Q
Judicial review is available only against decisions of what type of bodies?
A
Public bodies (core and functional)
12
Q
Who might be a public body exercising statutory powers?
A
- self-regulatory bodies (✅Datafin; ❌Aga Khan)
- contracted out service providers✅
13
Q
What will the courts conclude when there is a contract between the parties?
A
That the matter is regulated by private law and not public law, and so is not eligible for JR
14
Q
What are the two stages of JR?
A
- Permission stage - conducted ex parte by the claimant
- Full hearing - both parties present
15
Q
What will generally influence the court to exercise their discretion to refuse permission for JR?
A
Even if claimant is successful, their outcome will not be substantially different
+
Sufficient interest test
16
Q
Who might meet the sufficient interest test for standing?
A
- Associations
- Concerned citizens (Williams Rees Mogg; Gina Miller)
- Pressure / interest groups
those people must have:
- expertise in the issue
- real and demonstrable interest in the matter (e.g., *William Rees Mogg was given standing to challenge the legality of the Maastricht Treaty due to his ‘sincere concern’ for constitutional issues)
17
Q
When must judicial review proceedings be brought, and what is the absolute time limit for (1) general claims, (2) planning decisions and (3) procurement decisions?
A
- Promptly
+
in any event:
2a. no later than 3 months
2b. no later than 6 weeks for planning decisions
2c. no later than 30 days for public procurement decisions
18
Q
Can the court refuse permission even within the 3 month window, if they don’t believe the claimant acted promptly?
A
Yes
19
Q
What does the principle of procedural exclusivity provide?
A
That public law issues must be resolved via JR rather than through ordinary private law procedures
20
Q
What is the exception to the procedural exclusivity rule?
A
Cases concerning a mix of public and private law can be resolved in public law
21
Q
What must be true of a situation or dispute before judicial review is available?
A
It must be a live dispute/situation, and not be hypothetical
22
Q
Can judicial review be used to resolve disputes of facts?
A
No
23
Q
To show that they have standing, what must a claimant show, and at what stage is this assessed (unless the position is not obvious)?
A
Claimant must show they have a sufficient interest in the issues, and this is assessed at the permission stage, or the full hearing stage if the position is not obvious
24
Q
What is the more recent departure from the general position that a group of people lacking standing do not acquire standing by forming a group?
A
A group can be deemed to have a sufficient interest if:
- The group is responsible, well-resourced, has expertise, and/or
- There is unlikely to be an alternative claimant
25
Is the test for standing for judicial review more strict or lenient than the test for standing under the Human Rights Act?
It is more lenient for JR, where all that is required is a **sufficient interest**.
Under the HRA, a claimant must be a **victim** and **directly affected** to bring a claim.
26
What is an ouster clause, and how do the courts treat them?
A part of a statute which attempts to remove the courts' jurisdiction JR, e.g. "*no decision made under this section shall be reviewable by the courts*".
The courts see ouster clauses as **fundamentally objectionable to the rule of law** and therefore ultimately disregard them (Anisminic; Privacy Intl - not specific enough to exclude jurisdiction).
The courts interpret these to mean **legally valid decisions** and as such they can be **reviewed for illegality** under judicial review.
27
What is a **limitation clause**, and how do the courts treat them?
Limitation clauses reduce the time limits for a JR claim to be made, but still allow the courts some jurisdiction.
The court tend to allow these clauses to operate.
28
What must a claimant do before bringing judicial review proceedings?
Exhaust all other avenues first
29
Remedies for JR
JR-specific remedies:
- quashing order (*wipes the slate clean; the PA will make the decision again*)
- prohibitory order
- mandatory order
non JR-specific remedies:
- declaration
- injunction
- damages (rarely used)
30
What are the four grounds of judicial review?
1. Illegality
2. Procedural impropriety
3. Unreasonableness, and
4. Breach of legitimate expectations
31
What are the various **types of illegality**?
1. Error of law
2. Error of fact
2a. precedent fact
2b. no evidence
2c. established fact
3. Abuse of discretion
3a. relevancy
3b. improper purpose
4. 'Retention' of discretion
4a. fettering discretion
4b. delegation
32
what does **ultra vires** mean?
Public bodies can only take action/make decisions within the powers they have been given (**statutory** or **prerogative**)
Acting **outside** those powers will be unlawful = *ultra vires*
33
34
35
36
what might be a reviewable **error of law**?
if a body **misunderstands** or **misuses** a power under a statutory scheme
37
what are the exceptions to an error of law being found?
1. where an error of law is not decisive to the overall decision (CHECK THIS)
2. where it concerned **special** or **old** rules (*Page* - old and complex rules governing traditional unis)
3. the power was phrased in an imprecise or highly discretionary way, meaning that many interpretations are feasible (so the courts will not interfere)
38
what might be a reviewable **error of fact**?
courts are more cautious about factual than legal errors
**precedent or jurisdictional facts**
- lack of authority
- public body is mistaken (White & Collins - *compulsory purchase order of parkland was deemed unlawful*)
**no evidence facts**
- unsubstantial assertions rather than factual findings
**established fact, giving rise to unfairness (*E v Home Sec***
1. mistake as to existing fact
2. fact or evidence must be established (uncontentious/objectively verifiable)
3. not fault of claimant (or advisers)
4. mistake must have played a material (though not necessarily decisive) part in reasoning of the public body
39
what might be a reviewable **retention of discretion**?
**fettering of discretion** - decision-maker restricts its own powers of discretion
- by not using it at all (Fire Brigades - had the power to implement a Statutory Criminal Injuries Compensation Scheme, but didn't do it - abdicated his own statutory duty)
- by applying an overly rigid admin policy
**unlawful delegation** - decision-maker should not delegate responsibility
- BUT, Carltona principle = ✅acceptable for civil servant of an appropriate seniority to take decision in name of minister in same department (s101 LGA) - but minister still has political responsibility and is answerable to Parliament
❌cannot delegate between different departments
40
what might be a reviewable **abuse of discretion**?
**relevancy**:
- must take into account **relevant considerations**; and
- must disregard **irrelevant considerations**
**improper purpose**:
- must use statutory powers for the **purpose** Parliament intended
- can be **express** (*eg long title*) or **implied**
41
for **relevancy**, what happens if a public decision-maker fails to:
- take into account **relevant considerations**; and
- disregard **irrelevant considerations**
court can quash the decision (*Venables & Thompson*)
42
what happens if a public decision-maker uses a power for an **improper purpose** (different purpose or ulterior motive)
decision will be tainted by illegality
(Padfield principle)
43
What does the Public Sector Equality Duty require?
That public authorities must take equality considerations **into account** when making decisions
44
What three things must public authorities show *due regard* to under the Public Sector Equality Duty?
Regarding those who have a protected characteristic:
1. Eliminating discrimination against them
2. Advancing equality of opportunity for them
3. Removing or minimising disadvantages suffered by them
45
Does **due regard** under the Public Sector Equality Duty require a particular result be achieved?
No, just that these things are **considered** as part of the decision-making process
46
With the exception of the *Carltona* principle, can power once delegated be delegated again?
Not unless approved by an Act of Parliament
47
What does the **procedural impropriety** ground focus on?
The way in which a decision was made - **procedural fairness**
48
What are the five grounds, one or more of which could make up a claim under procedural impropriety?
1. Mandatory/directory requirements
2. Right to be heard
3. Rule against bias
4. Duty to consult
5. Duty to give reasons
49
What are the component parts of **procedural impropriety**?
1. Failure to observe procedural statutory obligations (overlaps with *illegality*)
2. Common law fairness
2a. General duty to act fairly in public law decision-making processes
2b. Rule against bias
50
What happens following a failure to observe procedural statutory obligations?
Was it so significant that Parliament would have intended that failure to comply would render the process unlawful?
Yes: Decision/process quashed
No: Decision/process undisturbed
51
In procedural impropriety, what is the **duty to act fairly**?
1. Duty to act fairly (*Ridge v Baldwin*)
2. Level of fairness - varies according to nature of decision/process
3. 'Content' of fairness
52
In **procedural impropriety >> duty to act fairly**, what determines the **level of fairness**?
Note: this is not a formal element of the proceedings.
How important was the matter to the challenger? How much was at stake? (e.g., would an individual face sanctions as a result of the decision?)
- licensing cases:
losing a license would require a higher level of fairness; applying to renew a license would require a middling level of fairness; merely applying** for a license from scratch would require a low level of fairness
53
In **procedural impropriety >> duty to act fairly**, what determines the **content of fairness**?
Based on the appropriate level of fairness, did the failure to provide relevant processes, rights and opportunities justify a quashing of the overall process? (e.g., meetings)
Supreme Court case: *Osborn v Parole Board* - importance of involving individuals in a process concerning them, rather than focusing on the potential impact on public resources
54
What is the **rule against bias**?
1. direct bias
2.
55
What is **direct bias**?
personal, usually financial interest in the matter they are deciding ('judge in one's own case')
*Pinochet* case - has since been clarified that **direct non-pecuniary** interests would only really apply in judicial situations where a judge had a connection with a party to the proceedings (as was the case here with Amnesty Intl who had intervened in proceedings against Pinochet)
56
What happens to cases where **direct bias** has occurred?
1. automatic disqualification
2. decision quashed
57
What is the test for **indirect bias** (*Porter v Macgill*)?
whether the **fair-minded and informed observer**, having considered the facts, would conclude that there was a **real possibility** that the [public body] was biased
1. is there a **preconceived opinion** (eg doctor examining police officer for the 2nd time)
2. unauthorised involvement in process (when a person who has made allegations against another has then made a decision eg disciplinary panel)
58
What is the difference between a mandatory and directory requirement and the impact of both?
Mandatory: requirement contains ***must***, failure to follow invalidates a decision
Directory: requirement contains ***should***, failure to follow may not invalidate a decision
Consideration is also given to where anyone would be caused an injustice or hardship if the requirement were not followed.
59
Regarding the right to be heard, what is the difference between an existing right or license being removed from someone and someone who is making an application for these things for the first time?
Right removed: must be given opportunity to hear case and to respond
New application: no hearing
60
Under the rule against bias, what is actual bias?
The decision maker has made a decision motivate by actual bias. This is usually impossible to prove.
61
What is the objective test for apparent bias?
Where a **fair-minded** and **informed observer**, informed of the facts, would conclude there was a **real possibility of bias**
62
Is there a general common law duty to consult those who are likely to be affected by a decision or policy?
No
63
In what four situations would a duty to consult arise?
1. Statutory duty to consult
2. Promise to consult
3. Established practice of consultation
4. Where failure to consult would lead to unfairness
64
Is there a general common law duty to give reasons to those who are likely to be affected by a decision or policy?
No
65
In what two situations would a duty to give reasons arise, and why?
1. Subject matter is important, e.g. personal liberty, because of *fairness*
2. If the decision departs from a usual standard, so the **person affected can establish whether something has gone wrong that they may be able to challenge**
66
When does a legitimate expectation arise, and what can give rise to it?
When a public body has given rise to a belief that a power will be exercised in a certain way, either through **assurance** or **previous action**
67
What is a procedural legitimate expectation?
An expectation that a decision will be made in a certain *manner*
68
What is a **substantive** legitimate expectation, and when will the courts give effect to it?
An expectation that something will be provided, e.g. care home. Court will give effect when it is **particularly important** and has been made only to a **small number of individuals**
69
What is **unreasonableness** sometimes known as?
Irrationality
70
What are the broad types of **unreasonableness**?
(1) material defects in the decision-making process
1a. weighing up factors
1b. irrationality
(2) oppressive decisions
(3) decisions that violate constitutional principles
3a. rule of law
3b. types of unreasonable decision
71
in **unreasonableness**, what might be a **material defect in the decision-making process**?
*close connection to relevancy in illegality*
failure to weigh up factors which may give rise to unreasonableness
72
in **unreasonableness**, what might be deemed **irrationality**?
failure in **logical chain** of reasoning by decision-maker
73
in **unreasonableness**, what might be deemed **an oppressive decision**?
*close connection with proportionality principle*
unreasonable because it is:
- oppressive
- draconian
- disproportionate
(*ex p Wheeler* - LCC banned the local rugby club from using its council-owned ground, given that individual members had gone on an unofficial tour to apartheid South Africa, not the club itself; *ex p Hook* - Barnsley Market owner's license was revoked because he urinated in a side street, and losing his license had a disproportionate effect on him)
74
in **unreasonableness**, what might be deemed **a *rule of law* constitutional principle** (which has been violated)?
- constituency and certainty in application of the law
- equality before the law
75
in **unreasonableness**, what might be deemed **a *type of unreasonable decision* constitutional principle** (which has been violated)?
- arbitrary decisions
- inconsistent and unclear
- favouritism / differential treatment / sanctions (eg *categories of prisoner* cases)
76
what is **Wednesbury unreasonableness** and how is it treated?
only if a decision is **so unreasonable that no reasonable authority could have come to it**, then the courts can interfere
**very high standard** to meet for courts to review for unreasonableness
77
for **unreasonableness**, what **intensity of review** should be applied? (substantive JR)
there is a variable standard for review of domestic JR cases:
**Sub-Wednesbury standard**:
- high intensity review
- fundamental rights
**Super-Wednesbury standard (ie *Wednesbury still applied*)**:
- low intensity review
- social and economic policy
78
if a European right (ECHR / EU law) is engaged, the proportionality standard should apply. But if **not European rights apply**, what standard applies?
**MODERN** (modified) Wednesbury approach
79
Can grounds of review cross over with others?
Yes
e.g., illegality and unreasonableness
80
When is a decision **irrational** or **unreasonable**, and why is this ground considered a slight contradiction of the purpose of JR?
The decision is **so outrageous or absurd** that it is **outside the power of the decision maker** and **cannot be considered lawful**.
It is considered a slight contradiction because JR typically considers procedure, not merits / substantive:
1. Basis of review
2. Intensity of review
81
What is the test for **unreasonableness**?
Decision must be so **outrageous** in its **defiance of logic** or **accepted moral standards** that **no sensible person** who applied their mind to the question **could have arrived at it**
82
Why is the unreasonableness test not used in Human Rights Act situations, and what test is?
It imposes a difficult threshold to meet **and** is insufficiently rigorous when dealing with HRA questions.
The **proportionality** test is used instead.
83
What is the three part proportionality test used instead of the reasonableness test for HRA and fundamental right situations?
1. Object of the policy **sufficiently important** to justify limiting a fundamental right
2. Measures **rationally connected** to objective, and
3. Interference no more than necessary
84
What are the remedies available under judicial review?
1. **Quashing order**: renders the decision void as if it was never made
2. **Mandatory injunction**: orders defendant to act in a particular manner
3. **Prohibiting injunction**: orders defendant not to act in a particular manner
4. **Declaration** that the decision was unlawful
85
As judicial review remedies are discretionary, in what two instances might the court not grant any?
1. Third party has already relied on the decision
2. Quashing the decision unlikely to make practical difference
86
Under the rule against bias, what is the automatic disqualification rule?
If the decision maker has a **financial interest**, *or* a **non-financial interest closely connected to the issues**, they are automatically disqualified
