Flashcards in JUDICIAL REVIEW Deck (32):
What are the four criteria that must be met to bring a case to JR?
1. Must be secondary legislation (AofP not subject)
2. Must be a public body
3. Must have sufficient locus standi
4. Must be within time limit
Why must it be secondary legislation?
Parliamentary sovereignty means AoP is highest law and can't be reviewed
Which statutory instruments tend to be subjects of JR
Decisions (most common)
What constitutes a public body?
Anything that comes under control of the state
AGA KHAN 1993
Jockey club could not be subject of JR as it was not a public body
Was concerned with relationships between private individuals
Should be dealt with in private court
Gives broad definition of public body, focuses on functions
If functions are more public = subject to JR
If functions more private = not subject to JR
What is locus standi?
Question of standing
Whether or not an individual has sufficient interest in the outcome can they bring a case to JR
Why is locus standi necessary?
Stop courts being flooded by anyone who has any issue with any legal decision
FLEET STREET CASUALS 1982
LORD STEYN on importance of locus standi:
'Prevents abuse by busybodies, cranks and other mischief makers'
GREENPEACE NO 2 1994
Argued that Greenpeace weren't local residents, so we're not directly effected by pollution in the area > shouldn't be allowed to bring the case (no locus standi)
Court held Greenpeace had greater access to funds and had carried out extensive research = in a better position to bring case than anyone else >>> allowed
What is the time limit on bringing a case?
Where is authority for time limit?
CIVIL PROCEDURE RULES, Rule 54.5
'Not later than three months after grounds to make a claim first arose'
Why do courts adhere strictly to the time limit requirement?
To prevent miscarriages of justice
Avoid long periods of delay on case outcomes
What is an OUSTER CLAUSE?
Attempt to exclude a ruling from being subject to JR
Case on ouster clauses?
ANISMINIC v FCC 1969
ANISMINIC v FCC 1969
Decision in question stated 'decisions shall not called into question in any court of law'
Failed > because the court held they weren't questioning the decision as such, rather the grounds for it and procedure in reaching it
NB It is possible to create an effective ouster clause but would have to be very specifically worded
Why don't courts like ouster clauses?
Important principle of JR is the public's ability to question legal decisions, holds the judiciary and also executive to account
3 grounds for JR
3. Procedural Impropriety
Case law for IRRATIONALITY
What'd did LORD GREENE say in WEDNESBURY 1948?
'So unreasonable that no reasonable authority could ever have come to it'
Classic example of irrationality ground for JR
What did LORD DIPLOCK say in GCHQ 1983
'So outrageous in its defiance of logic or accepted moral standard that no sensible person who applied his mind to the question to be decided could have arrived at it'
Expansion of grounds for irrationality
Non-justiciable issues = not subject to review
- GCHQ 1983 : not courts role to be involved in national security
- CAMBRIDGE HEALTH AUTHORITY 1995: not courts role to tell govt how to allocate funds
Policy issue = often exempt from JR
A v SOS HOME DEPT 2004 : courts don't want to be involved in policy decisions/issue of SoP
Case testing reasonableness of irrationality
Human rights cases = mostly reviewable
R v MoD 1995 : concerning homosexuals in the army > unsuccessful
DALY 2001 : idea of proportionality became used
Three subsections of illegality?
ULTRA VIRES (outside their power)
UNAUTHORISED DELEGATION OF POWERS
Case for ultra vires
AG v FULHAM CORP 1921
Case for irrelevant considerations
R v PORT TALBOT BOROUGH COUNCIL 1988
Case for unauthorised delegation of powers
BARNARD v NATIONAL DOCK LABOUR BOARD 1953
Cases for procedural impropriety
AYLESBURY MUSHROOMS 1972
- Failed to inform mushroom growers of a decision = decision ineffective and subject to JR
- Doesn't have to actually be a bias only
'Would a person conclude there was a real possibility that the tribunal was biased?' - Lord Lane
- Must be a fair hearing if there's a decision being made
LIVERPOOL TAXI 1972
- If given an assurance something will occur = raises legitimate expectation of outcome that must be met
- Reasons must be given
S6(1) HRA 1998
'It is unlawful for a public authority to act in a way that is incompatible with a convention (ECHR) right'