Judicial Review

Question 1

What are the 4 grounds for judicial review?

Answer 1

1. Illegality
2. Procedural impropriety
3. Unreasonableness/ irrationality
4. Legitimate expectation

Question 2

What are ‘procedural grounds’ for JR?

Answer 2

• Procedural Legitimate Expectation -> Relates to a process that was promised and should thus be followed
• Procedural impropriety
• Illegality

Question 3

What are ‘substantive grounds’ for JR?

Answer 3

• Substantive Legitimate Expectation -> Relates to a BENEFIT.
• Unreasonableness

Question 4

What does it mean if government is acting ‘ultra vires’

Answer 4

beyond its powers (conferred in statute)

Question 5

Is JR in the UK essentially the same as US ‘constitutional review’?

Answer 5

no

Question 6

Can JR quash/ invalidate government action?

Answer 6

yes

Question 7

What are the 5 preliminary issues which need to be considered before a JR claim can be pursued?

Answer 7

1. Amenability
2. Procedural exclusivity
3. Standing
4. Time limits
5. Ouster clauses

Question 8

JR preliminary considerations: What is meant by amenability?

Answer 8

whether the decision/action being challenged is appropriate for the judicial review process.

Question 9

JR preliminary considerations: What makes a claim ‘amendable’?

Answer 9

general rule: only “public law decisions are amendable to JR.

Question 10

JR preliminary considerations: Amendability requires the claim to concern a ‘public law decision’ - what is meant by this?

Answer 10

“decision, action, failure to act in relation to the exercise of a public function” (The Civil Procedure Rules part 54. 1 (2)(a)(ii)).

• usually carried out by public bodies, or;
• bodies performing public la functions (focus on the nature of the power being exercised rather than the from)

Question 11

JR preliminaries: when considering whether a body is performing public law functions, what test will the courts apply?

Answer 11

‘but-for’ test:

-> ‘but-for’ the private body, the function would be carried out by a public one = de facto performing public law functions and therefor a JR claim can be brought

Question 12

JR preliminary considerations: What is meant by procedural exclusivity?

Answer 12

JR is the exclusive mechanism for dealing with public law issues

must be concerned with public law rights and remedies

note: not applied as rigidly today as it once was - courts will have some flexibility where claims concern both private and public law matters

Question 13

JR preliminary considerations: What is meant by standing?

Answer 13

applicant must have ‘sufficient interest’ in the matter

(wider than those directly affected)

Question 14

What time limits apply to bringing of a JR claim?

Answer 14

‘a claim must be filed:

(a) promptly and
(b) in any event no later than 3 months after the grounds to make the claim first arose’.

Question 15

Can time limits for bringing a JR claim be extended by the parties’ agreement/ the court?

Answer 15

no -> parties’ agreement

yes -> court discretion

Question 16

Is there an automatic right to bring a JR claim?

Answer 16

no -> applicants must apply to court for permission first

Question 17

In order for an application for permission to bring a JR claim, an applicant must show what 3 key elements?

Answer 17

• sufficient interest
• an arguable case
• no suitable alternative remedy/ alternative remedies have been exhausted

Question 18

What discretionary remedies can an applicant seek?

Answer 18

1. quashing order
2. prohibitory order
3. mandatory order
4. declaration of parties’ rights
5. injunction
6. Damages

Question 19

JR procedural grounds: Illegality

What are the 2 questions a court must answer to establish illegality?

Answer 19

1. whether the power actually existed.
2. how such power is actually exercised and whether it’s lawful

Question 20

JR procedural grounds: Illegality

What are the 7 subcategories of illegality?

Answer 20

o Simple illegality
o Error of law
o Error of fact
o Relevant/Irrelevant considerations
o Improper use
o Fettering discretion
o Unlawful delegation

Question 21

JR procedural grounds: errors of law

what is an ‘error of law’?

Answer 21

decision-maker makes a mistake regarding a question of law, for example by misinterpreting the meaning of words in a legislative provision

e.g: Anisminic; R (Forge Care Homes Ltd) v Cardiff and Vale University Health Board [2017).

Question 22

JR procedural grounds: errors of law

Generally, all errors of law are reviewable however, there are some exceptions - what are these?

Answer 22

1. When the error of law is not decisive to the decision
2. Where the decision maker is interpreting special system of rules (ex the statute within a university)
3. Where the power is granted in terms that are so imprecise that the power is able to be interpreted in a variety of different ways

-> ex parte South Yorkshire Transport; The piece of legislation contained an imprecise phrase : “the grant will only be granted to those who can show their project makes a quantifiable difference to the community”, The court could find that such vague and imprecise phrase is capable of bearing a wide range of meanings.

Question 23

JR procedural grounds: errors of fact

What 3 types of facts are susceptible to JR

Answer 23

1. Precedent facts

Where a decision-maker’s power to decide on a particular matter depends upon it making an initial finding of fact, and the decision maker gets that fact wrong as in White and Collins v Minister of Health

2. No evidence for a fact

If a finding of fact on which a decision is based, is not supported by evidence at all, the courts can overturn the decision based on it (Coleen Properties v Minister of Health and Local government).

3. Ignorance or mistake of an established fact

Question 24

JR procedural grounds: relevant and irrelevant considerations

In R v Somerset County Council (ex parte Fewings). the council had taken into consideration irrelevant moral and ethical considerations in applying a general power of building roads.

What was the effect of this?

Answer 24

irrelevant considerations devoid of mandatory factors/ other relevant factors -> successful claim on this ground

Question 25

JR procedural grounds: improper purpose R v Somerset County Council (ex parte Fewings: In this cases the county council had used powers used for regulating and managing council land for general purposes such as planning and zoning, to follow their moral agenda against stag hunting in Somerset. How did the courts address this?

Answer 25

This was seen to be an improper use of the power.

Question 26

JR procedural grounds: fettering discretion When does this arise?

Answer 26

If a public body has acted in a way that has hampered its own ability to properly exercise a discretionary power, it will have 'fettered' its discretion. A public body can fetter their discretion by: - Failing to exercise the power or by abdicating it (Fire Brigades Union). - By applying a policy rigidly or in a blanket fashion (Brent; British Oxygen; Collymore).

Question 27

JR procedural grounds: unlawful delegation When does this arise?

Answer 27

default position: powers afforded to a public body by an act of parliament cannot be delegated. unlawful delegation = when powers are delegate in a way which they shouldn't have been.

Question 28

JR procedural grounds: unlawful delegation What are 2 exceptions to the general rule that powers afforded to a public body by an act of parliament cannot be delegated?

Answer 28

1. Statutory exceptions Express permission for decision-makers to delegate their powers. E.g. local authorities arranging for functions to be carried out by committees or by council officers or by another local authority. 2. Common law exception: Carltona principle Government ministers, and some other public office holders such as the chief constable), are permitted to delegate their discretion to sufficiently senior officials within their own departments, so long as accountability remains with the minister or the office holder who has the statutory power. So, as long as there is an authorized public servant carrying out the Minister’s functions in the name of the state, that won’t be deemed unlawful.

Question 29

JR procedural grounds: procedural impropriety When does this arise?

Answer 29

A public decision-maker’s failure to follow correct statutory procedure and/or to act fairly by: - Failing to observe procedural statutory rules - Failing its duty to act fairly (common law fairness)

Question 30

JR procedural grounds: procedural impropriety what is 'procedural ultra vires'

Answer 30

when public bodies fail to follow procedural requirements set out in statute

Question 31

JR procedural grounds: procedural impropriety In all cases, there is a requirement for decisions makers to act fairly, in accordance with the principles of 'natural justice'. What are the 2 central common law rules concerning the duty to act fairly?

Answer 31

1. The right to be heard 2. Rule against bias

Question 32

JR procedural grounds: procedural impropriety Duty to act fairly - 1. the right to heard. what does this mean?

Answer 32

This means that a person affected by a public law decision should be given the opportunity to present their case.

Question 33

JR procedural grounds: procedural impropriety Duty to act fairly - 1. the right to heard. What are the 3 elements a court will consider to assess whether this right has been fulfilled?

Answer 33

(i) whether a duty has arisen (ii) what level of duty is owed by the public authority (iii) the content of the duty and whether there is a breach

Question 34

JR procedural grounds: procedural impropriety Duty to act fairly - 1. the right to heard. When could this duty not arise?

Answer 34

1. overriding concerns relating to issues of national security (GCHQ – the duty to consult trade unions was overridden by national security concerns); 2. emergencies where public safety demands urgent action; 3. Rationing of resources; where a person has waived their right to fairness.

Question 35

JR procedural grounds: procedural impropriety Duty to act fairly - 1. the right to heard. What is the general principle for determining the level of fairness owed to the applicant by the authority?

Answer 35

the higher the stakes, the more fair the process can be expected to have been. Courts will use a spectrum approach

Question 36

JR procedural grounds: procedural impropriety Duty to act fairly - 1. the right to heard. What level of fairness would be expected in the following scenarios: 1. Forfeiture case -> licence taken away 2. Application cases -> issue is the general suitability of the applicant and notification of why the application may not be appropriate/ practical. 3. Ex parte Benaim & Khaida -> applications deciding a defined issue under statute

Answer 36

1. holder will usually be entitled to expect that this will not be done without a good reason. (In other words, a higher level of fairness should be expected, such as notification of changes and of reasons etc. 2. mere applications have quite a low requirement for fairness -> McInnes v Onslow-Fane [1978]. The applicant had previously held various licences from the British Boxing Board of Control. He was held to be a mere applicant and that the board was not obliged to provide mere applicants with specific reasons for refusal. 3. Even though the applicants were mere applicants, as in McInnes, the court found that the Gaming Board should at least have provided a gist of its reasons for refusing the application. This is because n Benaim, the Board was deciding a defined issue under statute

Question 37

JR procedural grounds: procedural impropriety Duty to act fairly - 1. the right to heard. Is there a duty for the public body to give reasons for their decisions?

Answer 37

No common law duty. But, duty may be implied: - In Stefan v General Medical Council it was stated that cases where reasons are not required are becoming exceptions rather than examples of the norm. - , Oakley established that it is desirable for administrative bodies to give reasons for their decisions to improve the quality of the decisions, by promoting public confidence in decision making processes, to enable the affected parties to consider whether the decision was lawfully reached and respective the individuals’ interest in understanding and accepting why a decision has been made.

Question 38

JR procedural grounds: procedural impropriety Duty to act fairly - 2. The Rule against bias. What does this mean?

Answer 38

A public decision maker cannot be deemed to have acted fairly if there is a risk that they may be biased. The rule against bias disqualifies such a person (a biased person) from deciding a matter and will lead to the quashing of any decision so made.

Question 39

JR procedural grounds: procedural impropriety Duty to act fairly - 2. The Rule against bias. What are the 2 types of bias

Answer 39

1. Direct bias 2. Indirect bias

Question 40

JR procedural grounds: procedural impropriety Duty to act fairly - 2. The Rule against bias. When could 1. direct bias arise?

Answer 40

note: extent of interest/ decision maker's knowledge of that interest are irrelevant. - Direct pecuniary interest - non-financial person interest -> e.g Pinochet where decision would promote a cause the decision-maker was involved in. - active involvement in an organisation which is party to proceedings (mere membership is insufficient)

Question 41

JR procedural grounds: procedural impropriety Duty to act fairly - 2. The Rule against bias. What are the consequences of finding direct bias?

Answer 41

Automatic disqualification of the decision

Question 42

JR procedural grounds: procedural impropriety Duty to act fairly - 2. The Rule against bias. What is the the test for 2. indirect bias?

Answer 42

whether a ‘fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility’ that the committee was biased (Porter v Magill). if yes -> strong claim for indirect bias under procedural impropriety ground for JR. Rule applies to all public bodies, not just judicial functions

Question 43

JR procedural grounds: procedural legitimate expectation What is it?

Answer 43

- Where a public has promised/ represented that a particular procedure will be followed before a decision is made - where there has been an established practice for the public body to use a particular procedure

Question 44

JR substantive grounds: substantive legitimate expectation what is it

Answer 44

Substantive: Where a public body makes an assurance or a promise that has led a person to believe they will receive a particular, tangible benefit.

Question 45

JR substantive grounds: substantive legitimate expectation What are the 3 core questions that a court will ask when assessing this?

Answer 45

1. Has an expectation arisen? 2. If so, is the expectation legitimate? 3. Has the public body lawfully frustrated the legitimate expectation?

Question 46

JR substantive grounds: substantive legitimate expectation What 5 factors help determine whether an expectation is 'legitimate'? Note that the relevance of these factors differ depending on context

Answer 46

1. Clarity A promise; a past practice 2. Legality 3. Agency (agent must act within authority when making a representation) 4. Knowledge of the policy 5. reliance

Question 47

JR substantive grounds: substantive legitimate expectation Where legitimate expectation has been established; when could an exception arise such that the public body has lawfully frustrated this LE?

Answer 47

of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. abuse of power

Question 48

JR procedural grounds: procedural legitimate expectation Where legitimate expectation has been established; when could an exception arise such that the public body has lawfully frustrated this LE?

Answer 48

compelling public interest (GCHQ) Where there is a procedural legitimate expectation, the court will require the procedure to be complied with, unless there is an overriding reason to resile from it. The adequacy of the reason will be assessed on the basis of fairness .

Question 49

JR substantive grounds: Unreasonableness What is the main test?

Answer 49

Wednesbury unreasonableness test

Question 50

JR substantive grounds: Unreasonableness What is the Wednesbury unreasonableness test?

Answer 50

A decision is “Wednesbury unreasonable” if it is so unreasonable that no reasonable authority would have come to it; the courts can then interfere with such a decision. – this is also a very vague standard.

Question 51

JR substantive grounds: Unreasonableness What are the 3 main classes of unreasonableness identified by the courts

Answer 51

1. Material defects in decision-making process Wrongly weighing up relevant factors (West Glamorgan CC v Rafferty; evicted travellers); Failure to provide a comprehensive chain of reasoning ex parte Fielder Estates (irrationality). 2. Oppressive decisions Decision imposes excessive hardship or infringement of rights which is deemed unnecessary 3. Decisions that violate constitutional principles Should be consistent and sufficiently certain; no arbitrary decision making

Question 52

JR substantive grounds: Unreasonableness Which of the below attracts a high vs low intensity of review: 1. Decisions affecting human/fundamental rights; legalistic cases 2. Decisions concerning broader policy questions; macro-economic/ political cases

Answer 52

1. High intensity 2. Low intensity

Question 53

What is the doctrine of proportionality for JR?

Answer 53

Requires in general terms that the means employed by a decision-maker to achieve a legitimate aim must be no more than is necessary to achieve that aim. Proportionality is the standard of review often required in EU law and Human Rights Act cases, and it has an influence upon the courts’ approach to the substantive grounds of review: unreasonableness and legitimate expectation.