Grounds of Judicial Review Flashcards
What were the 2 Arguments in Wednesbury [1948] and what is the case symbolic of for illegality?
- The discretion of the local authority was not unfettered. It had to be used to further the purposes incorporated in the legislation which conferred the power
- Even if the authority could use its discretion to protect the welfare of children, the actual condition imposed was unlawful as it was unreasonably wide
- The claim failed. Wednesbury is viewed as an example of judicial restraint
What is true of Discretion under the illegality principle?
- Discretionary powers cannot be delegated
- Discretionary powers cannot be transferred to other ministers - Lavender
What is the Carltona Doctrine?
- From Carltona [1943]
- Delegation is permitted if it is done appropriately. The minister cannot personally attend to every matter under his discretion. He may therefore delegate functions to bodies within the local authority
- If, however, the function is delegated to somebody too junior, the minister will be answerable for this failure
What are the specific grounds for judicial review?
- Unlawful sub-delegation (Illegality)
- Error of Law or of Fact (Illegality)
- The Decision Maker went Beyond their Power - Ultra Vires (Illegality)
- Ignoring Relevant Considerations or Taking Irrelevant Considerations into Account (Illegality)
- Fettering Discretion (Illegality)
- Wednesbury Unreasonableness
- Proportionality (Irrationality)
- Breach of Natural Justice (Procedural Impropriety)
- Legitimate Expectation
What is fettering discretion?
-When an authority fails to take into account individual circumstances when making a decision - British Oxygen [1971]
What is the law on relevant and irrelevant considerations?
-The public body must take relevant considerations into account and discard irrelevant considerations i.e. in Padfield [1968] - political embarrassment was an irrelevant consideration
What are the underpinning principles of illegality?
- Decision makers must only do what is permitted by law
- They must properly understand what their legal duties and powers are
- They must properly perform their duties and their powers must be used to further the aims and policies for which they were given
What is Wednesbury Unreasonableness?
- Unreasonableness applies to decisions which are absurd
- Called ‘irrationality’ by Lord Diplock in GCHQ
What are the issues with Wednesbury Unreasonableness?
- It has been criticised by Jowell - unreasonableness is not an apt definition of what is required for judicial intervention to be successful
- It takes an exceptional case, such as Smith [1996] where homosexuals were banned from being in the armed forces
What is Proportionality?
- The decision must be proportionate to the aim that it seeks to achieve
- It is an aspect of EU law
What is the issue with Proportionality?
- Assessing the unreasonableness under proportionality comes close to the judiciary commenting on the substantive fairness of the decision
- Proportionality may move towards a merits-based approach and this is not the aim of judicial review, it should be procedural - Brind [1991]
What is an example of a minister going beyond their power - ultra vires?
-Pergau Dam [1994]
What is Breach of Natural Justice?
- The decision maker must approach the decision with fairness
- The decision maker must be neutral, independent and unbiased
- Those adversely affected by decisions should be given a fair hearing
What are 2 cases on breach of natural justice?
- Doody [1994] - the precise requirements of fairness may vary over time but may include 1) opportunity to make representations before the decision is taken 2) being informed of the gist of the case 3) impartiality and open-mindedness
- Pinochet [1998] - the judges must be neutral - Lord Hoffmann failed to declare he had links to Amnesty International who had a stake in the case and so the previous judgement had to be set aside
What are Legitimate Expectations?
- Public bodies may have made a state of affairs explicit, creating a legitimate expectation which it is procedurally unfair to breach - Coughlan [2001]
- This used to be entirely procedural but now the court will assess the substantive benefit conferred to the individual.
