Judicial Review

Question 1

What is the case that says no delegation of decisions can be made?

Answer 1

Vine v National Dock Labour Board

Question 2

What is the exceptions to the rule against delegations? (2 examples)

Answer 2

The Carltona Principle- Ministers can delegate to civil servants
The Local government Act 1972- Local authorities can delegate to committees and/or officers if they make a formal resolution to do so.

Question 3

Vine v National Dock Labour Board. What is the rule?

Answer 3

No delegation of decisions can be made

Question 4

What is the rule against fettering of discretion? What are the two types of fettering?

Answer 4

Fettering discretion. IE using someone else’s discretion to make the decision (Lavender v Minister for Housing)
AND
Interpreting a policy to strictly (British Oxygen v Minister for Technology

Question 5

Lavender v Minister for Housing

Answer 5

What is the rule? No fettering discretion to another

Question 6

Congreve v Home Office. What is the ruling?

Answer 6

No using powers for improper on unauthorised purposes

Question 7

No using powers for improper on unauthorised purposes. What is the general case?

Answer 7

Congreve v Home Office

Question 8

What is Westminster Corp v LNWR?

Answer 8

Where there are two purposes, a decision is legal if the authorised purpose is the main one.

Question 9

What is the rule on “material influence” on decisions and which case?

Answer 9

R v Ilea ex partei Westminster City Council. Where there are two reasons for a decision, the decision is not legal if the unauthorised reason had a “material influence”.

Question 10

Which are the two cases relating to taking into account irrelevant considerations?

Answer 10

Robers v Hopwood
The Rule Against Socialism

Padfield v Minister of Agriculture
Milk producers sought judicial review of the Minister’s refusal to exercise his power to direct an investigative committee to be set up to examine complaints.

Question 11

“Errors of Law are always subject to judicial review.” Which case?

Answer 11

Anisminic v FCC

Question 12

Khawaja. What is the ruling?

Answer 12

Errors of fact are not always subject to judicial review unless they are jurisdictional (IE implicate the body’s ability to act)

Question 13

Wednesbury Irrationality. What is the standard that must be met?

Answer 13

“So unreasonable that no reasonable authority could have come to the decision”.

Question 14

CCSU. What is the standard of irrationality?

Answer 14

“So outrageous or in defiance of logic that no sensible person could arrive at it”

Question 15

Which is the case for direct bias?

Answer 15

Dimes v Grand Junction Canal

Question 16

R v Ministry of Defence ex p Smith

Answer 16

“Outside the range of reasonable responses”

Question 17

What is the test for indirect bias?

Answer 17

Whether a “fair minded and impartial observer would conclude that there had been a “real possibility” of bias in proceedings.
Margill v Porter

Question 18

What is the case that sets out the fit to a “reasonable” fair hearing?

Answer 18

Lloyd v McMahon

Question 19

What are the three case categories and the cases for each?

Answer 19

1 Forfeiture Cases: Where someone is giving up something they had. These generate the greatest rights.
(Ridge v Baldwin).
2. Legitimate expectation cases. Whee the aggrieved party had a legitimate expectation of a service or a facility.
R v Liverpool Corporation ex p Liverpool Taxi
3. Application cases. Where a party is making an application for a benefit or to avoid a dis benefit. (Mcinnesn v Onslow-Fane)

Question 20

What is the ruling in R v Panel on Takeovers ex partei Datafin?

Answer 20

There are two tests to determine whether a defendant is a “public body”:

1. Is the source of power statutory?
2. Does the body exercise public law functions?

Question 21

What are the 5 factors set out in R v Secretary of State for Foreign Affairs ex partei World Development Movement for a pressure group to be able to take a judicial review claim?

Answer 21

1 The importance of the matter and the weight of the grounds of challenge.

2. Whether anybody else is better placed to take the claim
3. He need to uphold the rule of law
4. The role of the pressure group.
5. The relevant statutory duty.

Question 22

Which Act requires that claimants in Judicial Review have “sufficient interest in the matter to which a claim relates”?

Answer 22

The Senior Courts Act 1981 s 31(3)

Question 23

Are Courts obliged to extend time limits in certain circumstances?

Answer 23

No, according to the ruling in Hardy v Pembrokeshire

Question 24

Will the Courts accept full ouster clauses in legislation?

Answer 24

No, according to Anisminic v FCC. The courts consider that it cannot be the will of Parliament to let public bodies act outside the law.

Question 25

Will the Courts accept partial ouster clauses in relation to time limits?

Answer 25

Yes, as in R v Secretary of State for the Environment ex partei Ostler.

Question 26

Will the courts accept implied ouster clauses?

Answer 26

Yes. If provisions in statute provide for alternative statutory remedy (appeals process etc) the courts will not recognise a Judicial review claim. R v Epping and Harlow Commrs ex p Goldstraw

Question 27

Will the Courts extend deadlines for judicial review?

Answer 27

If there is good reason. R R v Stratford upon Avon DC ex parte Jackson

Question 28

In which case is the rule against bias decided?

Answer 28

Dimes v Grand Junction Canal

Question 29

In what case is the rule against indirect bias discussed?

Answer 29

Margill v Porter

Question 30

In which case is the rule against bias discussed with relation to non pecuniary direct interest?

Answer 30

Re Pinochet

Question 31

What is the case for "legitimate expectation"?

Answer 31

R v Liverpool Corporation ex parte Liverpool Taxi Operators

Question 32

What happened to the Asylum and Immigration Bill 2004?

Answer 32

A full ouster clause that would have prevented judicial review caused outrage amongst the judiciary and led to the bill being abandoned. http://www.telegraph.co.uk/news/uknews/1455976/Woolf-fury-at-asylum-curb-on-courts.html

Question 33

Do rights apply to citizens of everyone under the jurisdiction?

Answer 33

Al Saadoon v UK

Question 34

Is there a right to reasons for a decision?

Answer 34

No R(Hasan) v Secretary of State for Trade and Industry, unless the decision looks abberrant "R v Civil Service Appeal Board (x p Cunningham)

Question 35

Is there a right to an oral hearing?

Answer 35

Yes, if it is fair and reasonable (Lloyd v McMahon)

Question 36

Which theory of justification of judicial review to Sweet andMaxwell advocate?

Answer 36

The Ultra Vires theory

Question 37

Is there a right to reasons for a decision?

Answer 37

No R(Hasan) v Secretary of State for Trade and Industry, unless the decision looks abberrant "R v Civil Service Appeal Board (x p Cunningham)

Question 38

Is there a right to an oral hearing?

Answer 38

Yes, if it is fair and reasonable (Lloyd v McMahon)

Question 39

Which theory of justification of judicial review to Sweet andMaxwell advocate?

Answer 39

The Ultra Vires theory

Question 40

What are the three qualifications needed for a qualification under the ECHR?

Answer 40

1. Prescribed by law 2. Has a legitimate aim 3. Necessary in a democratic society

Question 41

What are the three public remedies or prerogative orders in judicial review?

Answer 41

1. A quashing order- this causes an ultra vires decision to have no effect 2. A prohibitory order: a public body must refrain from an illegal action 3. A mandatory order: performance of a public duty is enforced.

Question 42

What is the effect of a quashing order?

Answer 42

An ultra vires decision has no effect (it must be taken again)

Question 43

What are the 5 procedural stages of judicial review?

Answer 43

1. A claim form is "served" on the defendant 2. The defendant can respond to contest the proceedings 3. The Court considers the preliminaries 4. There is no right of appeal against the court's decision but an oral hearing may be requested 5, An oral hearing happens

Question 44

Explain Ultra Vires theory of Judicial Review

Answer 44

Judicial Review simply upholds Parliament's intention, giving it effect.

Question 45

What are three of the non justiciable areas outlined by CCSU v Minister for CS?

Answer 45

1. International Treaties 2. Control of the Armed Forces 3. Defence 4. Dissolution of Parliament 6. Mercy 7. Public honours

Question 46

What three points does does Cane note in outlining the limits to Ultra Vires Theory?

Answer 46

1. The judiciary has a creative role, especially where EU law is concerned. 2. Parliamentary intention is not simple 3. Judicial Review is essential as it upholds the Rule of Law, not just sovereignty of Parliament

Question 47

R v Richmond Upon Thames

Answer 47

Acting without statutory authority