Grounds of Review Flashcards
(21 cards)
Grounds of review:
GCHQ - Lord Diplock laid out 3 grounds for judicial review:
- illegality
- irrationality
- procedural impropriety
Illegality
Forms of Illegality:
(Ultra vires)- beyond the power:
- unauthorised delegation
- irrelevant consideration
- improper purpose
- error of law
- fettered discretion
unauthorised delegation
Carltona Ltd v Commissioners of Works [1943] (find another less contentious one)
Authority for unauthorised delegation of Government
Carlota principle:
powers and duties conferred on Minister may properly be exercised by officials for whom the minister is responsible to Parliament or by a junior minister.
Irrelevant Consideration
Padfield v Minister of Agriculture[1968] AC 997
- Not exercising full discretion (take in all relevant considerations and exclude irrelevant ones) can go against what they are meant to do (ie duty to consider all circumstances as it arises).
- padfield is authority for discretionary powers being under scope of judicial review.
Improper Purpose
Westminster Corporation v London and North Western Railway Co
- TEST: In order to make a case of bad faith (improper purpose) courts must establish what the dominant purpose of the decision was - if improper then unlawful
- In order to make out improper purpose it must be shown that the goal of the discretionary power conferred (in the case it was creating public conveniences [not public subways]) was not really the force behind the action.
- It is difficult in practice to categorise a case as either irrelevant consideration or improper purpose - but doing so matters at stage of considering remedial effect of unlawful decision and whether it should be quashed
Porter v Magill:
- council’s powers must be used for purpose for which they were conferred.
Error of Law
Anisminic
- all errors of law are justiciable
Ex parte Venables:
where authority misunderstands their duty (ie duty provided by law (statute or prerogative), misdirection by itself renders decision unlawful.
Fettered Discretion
British Oxygen:
Unfettered discretion authority: - where decision maker adopts a policy as to the exercise of a discretion but appliesit in an over-rigid manner.
The rights of individuals is more realistically described as a right to ask that the general policy should be changed.
Padfield v Minister of Agriculture[1968] AC 997
- Ministers are subject to judicial review if fettered discretion is established.
Irrationality
Diplocks Irrationality:
- in GCHQ -
Wednesbury unreasonableness
- Associated Provincial Picture Houses v Wednesdbury Corporation [1948]
Super Wednesbury (Deferential Approach)
Anxious Scrutiny:
- ex parte Bugdaycay [1987] - introduced anxious scrutiny
- ex parte smith [1996] - provides test for anxious scrutiny
Diplocks Irrationality vs Wednesbury Irrationality
can use either:
Diplocks:
- decision that is so outrageous in its defiance or logic or of accepted moral standards that no sensible person who had applied his mind to the uestion to be decided could have arrived at it.
- ‘person’ rather than authority.
Wednesbury:
- unreasonable if so irrational no reasonable person would have made it, courts should consider whether the authority considered all relevant factors and ignored irrelevant ones.
- Wednesbury considers whether all relevant factors were considered.
Irrationality in HRA cases
Anxious Scrutiny must be applied
- ex parte Bugdacay [1987] - introduced anxious scrutiny
- ex parte smith [1996] - provides test for anxious scrutiny:
TEST: - unreasonable decision is one beyond the range of responses open to a reasonable person (if a reasonable person would find it unreasonable….)
- interference with fundamental rights must be** justified by compelling reason**. (proportional)
Proportionality
Ex parte Smith (1996)
- said that infringement on fundamental rights must be justified by a compelling reason.
Ahmed and others v HM Treasury [2010]
- only clear, explicit language in legislation can override fundamental rights.
Proportionality TEST:
Bank Mellat v HM Treasury (No 2.)
- approved of 4 limb test for proportionality set out in De Freitas (1-3) and Hunag v Home Secretary (step 4)
1) legislative object is sufficient to** justify limiting fundamental right** - prescribed by law.
2) measures used to meet legislative objective are rationally connected to the aim -
3) no more than necessary in a democratic society
4) analysis must always involve striking of fair balance between right of individual and interests of communicty (broadens scope of exercise under step 3).
Super Wednesbury
Deferential approach:
- cases of economic and social policy have a higher bar of unreasonableness to pass for courts to intervene:
- example: Ex parte Smith (1996) it was held that courts should not interfere in matters where gov is making policy decisions based on social or economic considerations.
Legitimate Expectations:
when does it arise:
Express Assurance
Absence of Assurance
5 Types of legitimate expectation:
- revocation of existing favourable decision Re 56 Denton Road Twickenham TEST
- Procedural entitlement arising from representation that particular procedure will be followed (FIND AUTHORITY)
- procedural entitlement arising from interest in substantive benefit which cannot be fairly withdrawn without right to comment. (Ex Parte Baker [1995])
exectation based on established practice: (GCHQ case)
- had always been consulted and thus had legitimate expectation to be consulted
If Breached:
will be considered irrational
When will legitimate expectation lead to substantive remedy
Ex parte Coughlan [2001]
TEST
- a) must be a legitimate expectation
- b) court must balance and consider whether the effect of the changed policy was ‘fair’ or amounted to abuse of power
3 requirements for the TEST:
1) promise is very important
2) promise is made only to a few persons
3) consequences of holding the authority to its promise were ‘likely to be financial only’
Paponette v AG of Trinidad and Tobago [2010]
In assessing the fairness the courts will use proportionality. (Bank Mellat v HM Treasury No 2)
- whether prescribed in law
- means fits the goal
- no more than necessary in democratic society
- balancing rights of individual with rights of the public.
Legitimate Expectations and limited resource cases
R (Bibi) v Newham Council
- award of sof substantive remedy is unlikely when assurance had been given to C about granting of limited resources.
express assurance of legitimate expectations
R (Bancoult) v Foreign Secrety (No 2) [2009]
- the official statement must have been ‘clear unamibgious and devoid of relevant qualification)
absense of express assurance in legitimate expectations
- where public authority followed a consistant practice (GCHQ)
TEST:
R (Davies) v HMRC [2011]
- practice must have been ‘so unambiguous, so widespread, so well-established and so well-recognised as to carry with it a commitment to a group
Legitimate expectations arising from unlawful representation?
Attorney General of Hong Kong v Ng Yuen Shiu [1983]
- says no legitimate expectation can arise from unlawful representation.
Procedural Impropriety:
def: failure of public authority to follow procedural requirements
Statutory requirements of procedural impropriety
Statutory requirements:
- mandatory requirements: breach invalidates the decisions
- directory requirements: breach does not invalidate the
R(Herron) v Parking Adjudicator [2011]
TEST:
Natural Justice
Common law assumption that certain procedures should be followed to ensure justice.
