JUDICIAL REVIEW Flashcards Preview

PUBLIC LAW SOAS > JUDICIAL REVIEW > Flashcards

Flashcards in JUDICIAL REVIEW Deck (32):
1

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

2

Why must it be secondary legislation?

Parliamentary sovereignty means AoP is highest law and can't be reviewed

3

Which statutory instruments tend to be subjects of JR

Regulations
Rules
Decisions (most common)

4

What constitutes a public body?

Anything that comes under control of the state

5

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

6

DATAFIN 1993

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

7

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

8

Why is locus standi necessary?

Stop courts being flooded by anyone who has any issue with any legal decision

9

FLEET STREET CASUALS 1982

LORD STEYN on importance of locus standi:
'Prevents abuse by busybodies, cranks and other mischief makers'

10

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

11

What is the time limit on bringing a case?

3 months

12

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'

13

Why do courts adhere strictly to the time limit requirement?

To prevent miscarriages of justice
Avoid long periods of delay on case outcomes

14

What is an OUSTER CLAUSE?

Attempt to exclude a ruling from being subject to JR

15

Case on ouster clauses?

ANISMINIC v FCC 1969

16

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

17

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

18

3 grounds for JR

1. Irrationality
2. Illegality
3. Procedural Impropriety

19

Case law for IRRATIONALITY

WEDNESBURY 1948
GCHQ 1983

20

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

21

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

22

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

23

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

24

Case testing reasonableness of irrationality

WEDNESBURY 1948

25

Human rights cases = mostly reviewable
EXAMPLES?

R v MoD 1995 : concerning homosexuals in the army > unsuccessful

DALY 2001 : idea of proportionality became used

26

Three subsections of illegality?

ULTRA VIRES (outside their power)
IRRELEVANT CONSIDERATIONS
UNAUTHORISED DELEGATION OF POWERS

27

Case for ultra vires

AG v FULHAM CORP 1921

28

Case for irrelevant considerations

R v PORT TALBOT BOROUGH COUNCIL 1988

29

Case for unauthorised delegation of powers

BARNARD v NATIONAL DOCK LABOUR BOARD 1953

30

Cases for procedural impropriety

AYLESBURY MUSHROOMS 1972
- Failed to inform mushroom growers of a decision = decision ineffective and subject to JR
MAGILL 2002
- 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
COOPER 1893
- 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
DOODY 1993
- Reasons must be given

31

S6(1) HRA 1998

'It is unlawful for a public authority to act in a way that is incompatible with a convention (ECHR) right'

32

Which articles of ECHR then become relevant in JR

A6 - right to a fair trial
A8 - right to private/family (cases involving removal from homes)
A10 - freedom of expression