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Definition of Judicial Review

JR is the mechanism by which the courts ensure that public bodies act within the powers that they have been granted and do not exceed or abuse those powers.

A court which judicially reviews the actions of a public body is not concerned with the merits of that body’s decision. Judicial review involves the courts making sure the public bodies make decisions in the right way.


Can they make a claim? (6 issues)

1. Does the claimant’s claim raise public law issues?
2. Are they a public body? Datafin
3. Do they have sufficient interest?
4. Time limits
5. Ouster Clause
6. Is there an adequate statutory remedy available?


In order to seek judicial review of a decision there must be a..... carrying out a .....

In order to seek judicial of a dec, there must be a public body carrying out a public function.


What is the Datafin test?

Claimants can seek judicial review only of decisions made by public bodies. Decisions of private bodies must be challenged under private law proceedings.

The datafin test has two strands.

Source of power test – if the body making a decision has been set up under statute or under delegated legislation, or derives its power under a reviewable prerogative power, then it is a public body.

If this part of the test is not satisfied then the court goes on to apply the second part.

Nature of power test – if the body making the decision is exercising public law functions, it may still be a public body.


Which statute requires claimants to have 'sufficient interest' in the matter to which a claim relates?

s 31 (3) of the Senior Courts Act 1981.

The courts will deem a claim to have standing to bring a judicial review claim only if the claimant has ‘sufficient interest in the matter to which a claim relates’ as required by s 31 (3) of the Senior Courts Act 1981.


What factors have to be taken into account when assessing whether a pressure group has sufficient standing?

Factors that would be taken into account (as outlined by the Divisional Court when ruling on WDM) include;
1. The need to uphold the rule of law
2. The importance of the issue raised
3. The likely absence of any other responsible challenge
4. The nature of the alleged breach of duty
5. The role of the pressure group.


Time Limits; What does Section 31 (6) of the Senior Courts Act 1981 allow a court to do?

Section 31 (6) of the Senior Courts Act 1981 allows a court to refuse a claim where it feels there has been ‘undue delay’ even if the claim is brought within 3 months of the relevant decision having been made.


Time Limits; What does Civil Procedures Rules, r 54.5 stipulate?

CPR, r 54.5 requires that a claim form must be filled in promptly and in any case within a max of 3 months after the ground to make the claim first arose, less in planning and procurement cases.


Time Limits: Can the courts extend the time limit?

Courts can reserve a discretion to extend time limit but only for good reason (Jackson).

Even if permission was granted and the case proceeded to a full hearing, a remedy could be refused if the application had been made outside the 3 month time limit (Caswell).


Is the court’s jurisdiction affected by an ‘ouster’ clause

Full ouster clauses will not protect decisions that were never legally valid. (Anisminic)
Partial ousters - However, the courts are quite happy with partial ousters that give a shorter time limit, as they like claimants to act promptly (ex p Ostler).

Unlike time limits, the courts have no discretion to grant an extension even if there are good reasons for the delay (Ostler)


What is an ouster clause?

Ouster clauses are inserted by Parliament into such Acts where it wishes to exclude any right of challenge once a decision has been made by a public body.


What is the effect of an adequate statutory remedy?

The provision of an adequate statutory remedy for an aggrieved party, such as the right of appeal, may impliedly oust the courts’ judicial review jurisdiction.


What are the domestic grounds of judicial review?

Illegality, Irrationality and Procedural Impropriety


What are the European grounds of judicial review

Breach of ECHR and breach of EU law


What are the substantive grounds of judicial review?

Illegality and Irrationality as they focus on the ‘substance’ of the decision under review.


What are the procedural grounds of judicial review?

Procedural impropriety as it focuses on the procedure followed in arriving at the decision under review.


What is the definition of illegality (sometimes known as substantive ultra vires)?

Illegality is where an action is illegal or ultra vires if it is beyond the powers of a public body in question

because the powers claimed do not exist

or because they are exceeded or abused in some way.


What are the Heads of Illegality? (7)

1. Acting without legal authority (McCarthy and Stone Developments Ltd)

2. Wrongful delegation – Vine, Carltona Principle, Local Govt Act 1972 s101

3. Fettering of discretion
- Acting on the dictation of another (Lavender),
- Applying a general policy as to the exercise of discretion in too strict a manner (British Oxygen)

4. Using powers for an improper or unauthorised purpose
- Improper Purpose (Congreve)
- Dual Purpose (Westminster Corp v LNWR - ‘primary purpose test’) R v ILEA the unauthorised purpose must not have materially influenced the overall decision.

5. Relevant/irrelevant considerations (Roberts v Hopwood or Padfield)

6. Error of Law (Anisminic - has the wording in the Act been misinterpreted)

7. Error of fact -
Is there some test which must be satisfied before a power can be exercised/duty arises? i.e. ‘jurisdictional’ Is there a dispute over the facts governing the outcome of this test? (Khawaja)


What does acting without legal authority mean?

Acting without a relevant power.
Decisions made are ultra vires because the lack of a relevant power (McCarthy and Stone)


What is the rule against delegation?

There is a general rule that decision-making powers, once given by Parliament cannot then be further delegated or ‘sub-delegated’. (Vine)


What is the Carltona principle?

Government Ministers sub delegating decision making powers to civil servants in their depts provides an exception to the general rule against delegation.


What are the exceptions to the Carltona principle?

a) It was clear from the wording of the statute that the decision was one for the Minister alone or
b) The decision was a crucial one with serious consequences and placing a duty on the individual Minister to take a decision would not place an excessive burden on them.
(R v Adams)


Other than the Carltona Principle, what is the other exception to the rule against delegation?

Local Government Act 1972 s 101

Under s 101 local authorities may delegate decision making powers to committees (or to an individual officer), provided they make a formal resolution to do so.


What does 'fettering' of discretion mean?

As a general principle, if Parliament provides a public body with a discretionary power, the courts will not permit that body to restrict or ‘fetter’ such discretion.


What are the two ways in which a public body may 'fetter' its discretion?

a) Acting under the dictation of another (Lavender) or
b) Applying a general policy as to the exercise of discretion in too strict a manner (British Oxygen)


What is an improper purpose?

Using a power without the authority to do so or in a way not provided for by Parliament.


What if the decision maker arrives at a decision based on more than one consideration?

Where there are dual purposes behind a decision, provided the permitted/authorised purpose is the primary purpose, then the decision is not ultra vires and should stand.

H of L established the ‘primary purpose’ test in case of Westminster Corp v LNWR.

The unauthorised purpose must not have materially influenced the overall decision. In R v ILEA ex p Westminster City Council 1986.


What is an example of taking into account an irrelevant consideration and ignoring a relevant one?

Roberts v Hopwood 1925 – Poplar Borough Council had exercised its power under statute to pay is employees wages as it saw fit. Set a generous min wage and applied it to female workers in the same way as male workers. District Auditor order the Council to make good the financial losses incurred by doing this. Council sought JR. H of L found for District Auditor because Council had taken into account irrelevant considerations i.e. ‘social philanthropy’ and ‘feminist ambition’ and also because the Council had disregarded relevant considerations, namely the wage levels in the labour market and the burden which would be placed on ratepayers.


When might an error of law occur?

It may occur if the wording in the Act is misinterpreted by the decision maker. (Anisminic).

Any error of law will make a decision unlawful.


What does an error of fact depend on?

Errors of fact depend on evidence.

Errors which mean that the public body has no power or jurisdiction to take the decision, will make a decision unlawful.

Khawaja) Khera had not tried to hide his entry into the UK and was not in UK illegally. This was an example of a jurisdictional error of fact.