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Public law revision > Judicial Review > Flashcards

Judicial Review Flashcards

1
Q

What are the 4 grounds for judicial review?

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

What are ‘procedural grounds’ for JR?

A
  • Procedural Legitimate Expectation -> Relates to a process that was promised and should thus be followed
  • Procedural impropriety
  • Illegality
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3
Q

What are ‘substantive grounds’ for JR?

A
  • Substantive Legitimate Expectation -> Relates to a BENEFIT.
  • Unreasonableness
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4
Q

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

A

beyond its powers (conferred in statute)

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5
Q

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

A

no

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6
Q

Can JR quash/ invalidate government action?

A

yes

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7
Q

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

A
  1. Amenability
  2. Procedural exclusivity
  3. Standing
  4. Time limits
  5. Ouster clauses
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8
Q

JR preliminary considerations: What is meant by amenability?

A

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

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9
Q

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

A

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

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10
Q

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

A

“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)
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11
Q

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

A

‘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

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12
Q

JR preliminary considerations: What is meant by procedural exclusivity?

A

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

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13
Q

JR preliminary considerations: What is meant by standing?

A

applicant must have ‘sufficient interest’ in the matter

(wider than those directly affected)

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14
Q

What time limits apply to bringing of a JR claim?

A

‘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’.

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15
Q

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

A

no -> parties’ agreement

yes -> court discretion

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16
Q

Is there an automatic right to bring a JR claim?

A

no -> applicants must apply to court for permission first

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17
Q

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

A
  • sufficient interest
  • an arguable case
  • no suitable alternative remedy/ alternative remedies have been exhausted
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18
Q

What discretionary remedies can an applicant seek?

A
  1. quashing order
  2. prohibitory order
  3. mandatory order
  4. declaration of parties’ rights
  5. injunction
  6. Damages
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19
Q

JR procedural grounds: Illegality

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

A
  1. whether the power actually existed.
  2. how such power is actually exercised and whether it’s lawful
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20
Q

JR procedural grounds: Illegality

What are the 7 subcategories of illegality?

A

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

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21
Q

JR procedural grounds: errors of law

what is an ‘error of law’?

A

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).

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22
Q

JR procedural grounds: errors of law

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

A
  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.

23
Q

JR procedural grounds: errors of fact

What 3 types of facts are susceptible to JR

A
  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

  1. 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).

  1. Ignorance or mistake of an established fact
24
Q

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?

A

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

25
Q

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?

A

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

26
Q

JR procedural grounds: fettering discretion

When does this arise?

A

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).
27
Q

JR procedural grounds: unlawful delegation

When does this arise?

A

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.

28
Q

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?

A
  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.

  1. 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.

29
Q

JR procedural grounds: procedural impropriety

When does this arise?

A

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)
30
Q

JR procedural grounds: procedural impropriety

what is ‘procedural ultra vires’

A

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

31
Q

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?

A
  1. The right to be heard
  2. Rule against bias
32
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 1. the right to heard.

what does this mean?

A

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

33
Q

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?

A

(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

34
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 1. the right to heard.

When could this duty not arise?

A
  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.
35
Q

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?

A

the higher the stakes, the more fair the process can be expected to have been.

Courts will use a spectrum approach

36
Q

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
A
  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
37
Q

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?

A

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.

38
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 2. The Rule against bias.

What does this mean?

A

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.

39
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 2. The Rule against bias.

What are the 2 types of bias

A
  1. Direct bias
  2. Indirect bias
40
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 2. The Rule against bias.

When could 1. direct bias arise?

A

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)
41
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 2. The Rule against bias.

What are the consequences of finding direct bias?

A

Automatic disqualification of the decision

42
Q

JR procedural grounds: procedural impropriety

Duty to act fairly - 2. The Rule against bias.

What is the the test for 2. indirect bias?

A

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

43
Q

JR procedural grounds: procedural legitimate expectation

What is it?

A
  • 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
44
Q

JR substantive grounds: substantive legitimate expectation

what is it

A

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.

45
Q

JR substantive grounds: substantive legitimate expectation

What are the 3 core questions that a court will ask when assessing this?

A
  1. Has an expectation arisen?
  2. If so, is the expectation legitimate?
  3. Has the public body lawfully frustrated the legitimate expectation?
46
Q

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

A
  1. Clarity

A promise; a past practice

  1. Legality
  2. Agency (agent must act within authority when making a representation)
  3. Knowledge of the policy
  4. reliance
47
Q

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?

A

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

abuse of power

48
Q

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?

A

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 .

49
Q

JR substantive grounds: Unreasonableness

What is the main test?

A

Wednesbury unreasonableness test

50
Q

JR substantive grounds: Unreasonableness

What is the Wednesbury unreasonableness test?

A

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.

51
Q

JR substantive grounds: Unreasonableness

What are the 3 main classes of unreasonableness identified by the courts

A
  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).

  1. Oppressive decisions

Decision imposes excessive hardship or infringement of rights which is deemed unnecessary

  1. Decisions that violate constitutional principles

Should be consistent and sufficiently certain; no arbitrary decision making

52
Q

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
A
  1. High intensity
  2. Low intensity
53
Q

What is the doctrine of proportionality for JR?

A

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.

Public law revision (14 decks)

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