Judicial Review Cases

Question 1

Which case would you use as the authority for locus standi?

Answer 1

Fleet Street casuals (Mikey mouse case)
Federation of small businesses didn’t have standing for the House of Lords, but did for the purposes of the leave stage.
Leave stage - only something vexatious or trivial won’t be allowed.
Substantive stage - higher threshold.

Stronger merits of claim mean it is easier to get standing, so it was a VICTORY for the rule of law as it was no longer as formalities to get standing.

Question 2

What did the reforms in the 1970s do for judicial review? Who was the architect of the new system?

Answer 2

Diplock
Idea was to bring in a single test. So 1 test for all remedies.
He didn’t want to see the system held back over disputes to do with standing, otherwise it would create a ‘grave lacuna in our system of public law’.

Lord wilberforce wanted to keep the old system.

Question 3

Which two cases demonstrate an ‘open’ view with regards to claimants obtaining standing?

Answer 3

Felixstone ex p Leigh
Anyone could’ve raised this JR claim, it was about the fact that a set of magistrates wouldn’t release the names of magistrates.

Declaration to say shouldn’t hide names was granted
Mana tort order to get names was NOT granted. There was no duty to give them.

Pergau Dam Case
About the legality of the decision to fund a dam in Malaysia
World development movement did have standing, due to the importance issues, merits of the case, RoL at stake, and it was unkept that another challenger would being the case.

Question 4

When do individuals automatically have standing?

Answer 4

When they are directly affected

Ex p Venables

Question 5

Which two cases are good to contrast when talking about standing?

Answer 5

Ex p Rees-Mogg
Got standing because he had a sincere interest in constitutional affairs (challenge to Maastricht Treaty) - called a ‘buy in’. The public authority was Ken to take the case as didn’t want to look weak

R(Bulger) v SoS HD.
Only two parties who can challenge in criminal law - c and d
So the victim’s father couldn’t challenge D’s tariff

Question 6

Which case would you use to demonstrate a closed ruling on standing? What were the other two points of law in relation to standing set out in this case?

Answer 6

Ex p Rose Theatre Trust.

The trust was set up specifically to challenge the sections not to excavate the Rose Theatre. They wanted a quashing order and a mandatory order.
There is no such thing as ‘cumulative standing’

Standing is judged by the court he not the decision-maker.

Question 7

In which case was a responsible and respected body allowed to mount a challenge? I.e. Had standing.

Answer 7

Ex p Greenpeace.

Responsible and respected body, had genuine concern for the environ, well placed to mount a challenge due to expertise and cost - they could pay, whereas individuals who lived near nuclear plant (directly affected) would be less able to fund the challenge.

Question 8

What is the real question in relation to standing?

Answer 8

Whether or not the applicant can show some substantial abuse. It is NOT whether his personal rights or interests are involved or affected.
Look at the strength of the case, and not at the connectedness with the person challenging.

Sedley J said this in ex p Dixon

Question 9

What is the quote you need to learn in relation to amenability? Which case was this from?

Answer 9

Atkin in ex p London Electric

For a public body to be amenable to standing it must be “any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially”

Essential question is if they have supervisory jurisdiction.

Question 10

If something looks or sounds like a court will it be amenable to JR?

Answer 10

Not nec, have to look at if it is a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially.

Ridge v Baldwin, per Lord Reid

Question 11

Can bodies of customary authority be amenable to JR?

Answer 11

Yep. Ex p Lain
Legal authority here came from the royal prerogative (rather than CL or statute)
The notion is expansive, not restrictive.

Question 12

What was Datafin about?

Answer 12

Panel on mergers and takeovers. It was amenable to JR (even though the claim ultimately failed)

Private bodies exercising a public function are judicially reviewable.

Panel had brought itself into being and maintained itself without visible means of legal support. It had also been taken account of by statute.

Self-assumed power and self-regulatory power is an even GREATER was basis for JR.
The source of power isn’t important but the NATURE of the power is very important. Regulators set the benchmark, v important for a court to hold it to account.

Question 13

What is the test when looking to see if a body is amenable to JR?

Answer 13

Substitutability. But for the existence of the body would the govt have to step in to fulfil the role?
Advertising Standards Authority ex p. insurance services.

AKA The hypothetical disappearance test.

Here the ASA was judicially reviewable - similar reasons to the Datafin case

Question 14

In which case did an individual have a right to challenge in contract law, so it was shown the defendant’s claim that it should’ve been a public challenge was wrong?

Answer 14

Law v Greyhound Club
Exclusion based on allegation of dog doping.
Brought action in private law. Club said should’ve been a JR action
Law was right to bring action in contract since he had a full set of right arising against the club.

Question 15

Are religious bodies reviewable?

Answer 15

Not if they’re set up for solely religious purposes
Chief Rabbi ex p Wachmann

The court isn’t prepared to get involved in the intimate subject of religous life

Question 16

In which case did the substitutability test come under pressure?

Answer 16

The Aga Khan
Race horses - doping allegations.Aga sought a quashing order.
Club brought itself into being (like in Datafin)
The club exercised a MONOPOLY. Local economy depended on its existence.

The club satisfied the test, but it wasn’t governmental in nature so it wasn’t reviewable.

Bingham thought the test WAS satisfied but JR actin failed since club’s power not governmental in nature
Farquarhason and Hoffmann - both thought the test WASN’T satisfied. Said this was an attempt to extend the frontiers of JR.
The club was a consensually appointed domestic tribunal (Laws case) and no-one obliges anyone to race horses in this country, so shouldn’t be st review.

All three lords agreed Aga had a contract with the club so could rely on remedies in private law

JR DOES NOT EXIST TO PATCH UP THE GAPS IN PRIVATE LAW.

Question 17

Which case illustrates the more recent broader approach taken with regards to amenability?

Answer 17

Ex p Donn
Legal aid board was JR.
Said there should be no single test. It is a matter of “overall impression and degree”
Board was superintending large sums of money, acting on behalf of litigants who would otherwise not get representation.
Criticism: suggests a hierarchy of private and public law. (amenable to JR since public interest very great)

Question 18

What do public bodies not have?
Hint: this underpins the substantive fact of JR
Case?

Answer 18

Public bodies have no heritage of legal rights. Their rights are conferred to them by statute.
Ex p Fewings

Legal character is defined by the fulfilment of duties which the body owes to others.
Caveat: Localism Act 2011 - broader competence to act.
Three types of factors in statute:
A. Prohibitory factors
B. Mandatory factors
C. Discretionary factors

In this case (about hunting on council land) the ethical views of the councillors were taken into account when he ordered a ban. This was an irrelevant consideration since the councillor’s powers were restricted to planning, so they didn’t have the power to enforce the ethical views! Illegality.

Question 19

Who writes about the Ultra Vires Doctrine and is a traditionalist?

Answer 19

Christopher Forsyth in ‘Of Figleaves and Fairytales’
Traditionalist in that he believes in UV
Categories critics into three distinct groups:
A. Those who say UV cannot be the basis for review
Idea - Datafin - the body brought itself into being - how can we review a body which exercises powers it granted itself? It could always grant more powers to get around the review
Forsyth admits the difficulty. Power to review derives from the court’s power to control monopolies (rather than the UV doctrine itself) Datafin is an exceptional case.

B. Those who say UV is not the basis for JR.
Court isn’t really policing parliament’s intentions, really just improving the administration of justice. Just striking down decisions which impede this.
Forsyth sidesteps this criticism. Says parliament ratifies the courts’ actions by not stopping them. So they are giving effect to parliament’s intentions.

C. Those who say UV should not be the basis for review.
Courts should instead have the power to scrutinise legislation - this should be the basis for review. This is a principle advocated by Lord Woolf and Sir John Laws.
This runs into many problems when the separation of powers is taken into account.

Question 20

What can authorities only do?

Answer 20

Authorities can only do what is reasonably incidental to their powers.
AG v Fulham Corp
This case was about the baths and washouses act. The council went further by introducing a laundry service - this was held to be not reasonably incidental to their powers. Crux= onus was on the taxpayers to fund

Dirty laundry of Fulham.

Question 21

When was charging incidental to the incidental powers of the council?

Answer 21

Ex p McCarthys and Stone
Council had the power to det planning applications. They could provide advice on how to make better applications (would improve quality) but couldn’t charge for this advice.
The power to create new revenue streams is a function of central govt (this is codified in the Localism Act 2011).

Question 22

Which case would you use as the authority for the fact that all errors of law are reviewable?

Answer 22

Anisminic

Question 23

What are the three classes of decision-maker and in which case was this stated?

Answer 23

Re Racal Communications
Diplock:
A. Administrative tribunals - reviewable
B. Inferior Courts - not reviewable but have appeals process
C. High Court Judges - not reviewable. Experts in law.

So does this mean high court judges (as well as Parliament) are effectively exempt form JR too? Hmm appeals….

Question 24

When are ouster clauses ok?

Answer 24

Denning in Gilmore said they were ok when expressly worded and unambiguous. This makes decisions unappealable but still s.t. JR. He said they wouldn’t be manner and form entrenched.

In South Yorkshire Transport the meaning of the statute was sufficiently vague (“substantial” is a vague term) so it could easily be interpreted around by the court.
So ouster clauses are ok if they can be circumvented by broad interpretations.

Question 25

If you have been delegated a duty what should you not do with it?

Answer 25

Further delegate it.
Carltona v Commissioner of works 1943 wartime!
The commissioner had the power to requisition the food factory, but his secretary did not!

Question 26

What is a partial ouster clause? Are these ok? Case?

Answer 26

E.g. Where makes the judicial review on tighter than normal conditions. Valid.
Ex p Huntington

Question 27

What must a minister not do with his discretion?

Answer 27

Fetter it.
Lavender and Son v Minister for Housing
Minister had fettered his discretion as had asked for someone else’s opinion before making up his own mind.
Where discretion is exercised only the person to whom the discretion has been granted must make the decision.

Question 28

Will a public authority fetter its discretion is it adopts a strict, inflexible policy?

Answer 28

No, not necessarily
British Oxygen
An inflexible policy is permissible, but the minister must be prepared to listen to a case made for the policy to be disapplied (I.e. For an exception to be made)
Ministers must always be taking on the needs and opinions of the people they seek to serve.

Question 29

Where the power to delegate is imposed by statute what may the office holder delegate?

Answer 29

Any non-fundamental functions.

Birmingham Justices

Question 30

In terms of discretionary policies what must you not have?

Answer 30

A blanket ban
R v NW Lancashire HA ex p A

Can have a strict, inflexible policy (British Oxygen) but can’t have a blanket ban.

Question 31

Describe the Wednesbury unreasonableness test.

Answer 31

Lord Greene set it out.
Is a decision so unreasonable that no reasonable authority would ever come to it?
Has there been an abuse of discretion? The use of the discretion must be REAL.

Central idea = decisions must not be made for improper purposes and must be made upon relevant considerations.

So discretion must be exercised in good faith, must not be fettered, no capriciousness, honest, decisions must not be taken for improper purposes, and decisions must be made on relevant considerations.

Criticisms: wholly circular arg (reasonable not defined and used twice!). Vague. More about intuitive feel than legal certainty.

Question 32

Which case was described as a sea change in public law? Why was it a huge power-grab for the courts?

Answer 32

Padfield v Minister of Agriculture
This was about a milk marketing scheme. Minister had the power to transfer complaints to a committee of investigation. He referred them, argued he had discretion to do so and that he didn’t have to give reasons.

Lord Reid:
- parliament must have vested discretion because it wanted the minister to promote the policy and the objects of the act.
- construing the purpose of the act = job of the courts. Court can intervene if the minister had misconstrued the act or used it for improper purposes.
So power grab by the courts away from the executive.

Discretion must always be tied to the policy objects of the legislation. Must have a PROPER PURPOSE.
Cf. ex p Fewings where minister didn’t have an improper purpose.

Forced the minister to reconsider. He did. Made the same decision.

Question 33

Discretion must be exercised in accordance with what? Case?

Answer 33

The law.
Congreve v Home Office, per Lord Denning
Minister wanted to increase tv licence fee. People paid before the implementation date, so tried to revoke their licences.
Held to be an abuse of process. Can’t just revoke licences because want more money, have to have a legitimate reason!

Question 34

Discretion must be tied to the policy objects of legislation (Padfield), but can there be a mixture of motives? 2 cases.

Answer 34

Yes, but the overriding reason can’t be improper
Wheeler, per Lord Templeman

Council banned football club from using pitches, it had the power but it was an abuse of process. It’s overriding motive was to penalise the club for letting its players play in S Africa at the height of apartheid.
Denning said the laws of this country are not like Nazi Germany. Can’t dictate views. Was an abuse of process.

Westminster corporation v LNWR
Can have a mixture of motives but provided the proper purpose was DOMINANT the decision should stand.

Question 34

Cases of unreasonableness and proper/improper purposes are cases of what? Cf. what?

Answer 34

Cases where there has been conscious wrongdoing. Looking at abuses of power and process.

Cf. cases where there have been SLIPS - here look at relevant/irrelevant considerations

Question 35

In which case was timing everything? It was the most criticised case in public law.

Answer 35

O’Reilly v Mackmann
Prisoners challenged the decision to remove their remission time due to rioting.

Brought the claim in private law. Struck down as procedurally improper (prisoners had no private law rights against the body) but had missed the deadline to bring a public law claim. So the prisoners were left without redress.
Very strict, formalistic approach.
Reason: legal philosophy: if allowed public matters to be argued in private law then it would mean lower courts have the power to JR. Only higher courts may JR.

Question 36

Which two cases would you contrast when talking about procedural exclusivity?

Answer 36

Cocks v Thanet
Homeless man in Thanet brought action against council. Homeless in Thanet - how could he get to London to run an action in the High Court in time?
The court arguably lost sight of plain justice in this case

Cf. Wandsworth v Winder
JR actions may be used as a DEFENCE in private law actions
Council was suing him in private law. He used a public law claim as a defence - said the rent rise was unreasonable, hence he broke his contract.

Question 38

If you have a private law contract with the public body can you bring a claim in private law? 2 cases.

Answer 38

Roy v Kensington and Chelsea Family Practitioner Committee
Yes, can do this regardless of the fact that the contract may be merely incidental to the relationship.

Mercury Communication
There was a contract with the public body so a private law action to raise a mix of issues was ok.
So permitting an exception to the O’Reilly rule.
Reason: otherwise would make the system too rigid. Flexibility means increased access to justice. If made it too rigid then would place a heavy burden on the appeals courts and so would slow things down.

Question 39

In which two cases was Lord Woolf more open to claims being brought in JR (where a blurry crossover with private law was present)?

Answer 39

Dennis Rye Pension Fund

Clark v Uni Offices of Lincs and Humberside 2000
Time limit was extended as it was unclear exactly when the university’s decision was made

General trend = towards more JR claims being brought, so access to justice improved, rather than things falling at early and technical hurdles (standing, timing, public v private distinction)

Question 40

If it is genuinely unclear whether a case should be brought in public or private law what sort of claim should the claimant bring?

Answer 40

A JR claim.
Dennis Rye Pension Fund

Lord Woolf: shouldn’t get tied up in technical distinctions, look at the practical consequences of the distinction. If neither route offers a disadvantage then allow the claim to be brought!

Question 41

Explain what happened in ex p Fewings.

What were the differing the HoL?

Answer 41

Hunting was banned on council land. This was an abuse of power - the minister didn’t have the power to afford his ethical view so much importance.

My justice laws said that public bodies have no heritage of legal rights - it is this legal fact which underpins the substantive fact of JR. Legal character is def

Question 42

Explain what happened in ex p Fewings.

What were the differing the HoL?

Answer 42

Hunting was banned on council land. This was an abuse of power - the minister didn’t have the power to afford his ethical view so much importance. Council had power to acquire land for benefit, development, or improvement of the area. Banning hunting was an improper purposes once it was an imposition of an ethical view.

My Justice Laws said that public bodies have no heritage of legal rights - it is this legal fact which underpins the substantive fact of JR. Legal character is defined by the fulfilment of duties which the body owes to others

Bingham cf. Simon-Browne

Bingham - the cruelty argument is irrelevant, but it could’ve been relevant if it had been advanced on the grounds that it would benefit, develop, or improve the land since this was within the council’s Orioles with the ethical route was that it was free-wheeling, I.e. It wasn’t checked, it didn’t have a purpose.

Simon-Browne dissent: said cruelty arg was relevant and that that council would’ve been criticised had it not been taken into account.

Preference = Bingham. The cruelty argument was INDEPENDENT of the policy objects of the legislation!
So council advanced the decision on grounds which were completely separate from their powers, hence was an IRRELEVANT consideration, and so they were acting ultra vires.

Question 43

If there is a blend of relevant and irrelevant considerations included in the decision will the decision be illegal?

Answer 43

BCC Ex p Owens
SDP leader complaining about airtime in the run up to the 1983 general election. There were a number of good reasons for the complaint, BCC said it was too onerous to go through all the previous programming.
Court didn’t accept. Said onerousness of task irrelevant.

Have to look at the weighting of relevant and irrelevant considerations.
Use a BUT FOR test - would a different decision have been reached has the irrelevant considerations not been considered?

If genuinely can’t distinguish then use a quashing order, so strike down the decision.

Here they used the but for test and found the decision should not be struck down.

Question 44

When weighting the considerations (of relevant/irrelevant a considerations) who is this a job for?
2 cases.

Answer 44

The decision-maker and not the courts!
The court adjudicates in outcome, not on the we righting of considerations.

Bromley LBC v GLC
The decision-maker’s weighting must not be so bad as to be irrational - must look at the fundamental rights, breaches of duty, fiduciary duty to local taxpayer
Here was Ken Livingstone’s policy to subsidise London transport to make fares 50p

Tesco Stores 1995
Said the weighting of the considerations is a matter entirely for the decision-maker.
Hoffmann rejected the idea that there is a distinction between giving a consideration a small amount of weight and no weight at all.
Criticism: this doesn’t make much sense - a decision-maker could look at all the relevant considerations and decide to give them no weight!
Yes, but this is fine so long as not irrational. Looking at is giving consideration is it not?

Question 45

How high is the threshold for irrationality?

Answer 45

Incredibly high!

Nottingham CC v Sec of state for environment.
Nothing short of the minister having lost his sanity would lead to irrationality.

Question 46

What is the key case on irrationality? Who criticises it as a ground for JR? Do you agree with this view?

Answer 46

Wednesbury, per Lord Greene

Something so unreasonable that no reasonable/rational decision-maker would’ve reached it

Professor Craig criticises this: we don’t need irrationality as a ground at alliance it OVERLAPS with irrelevant considerations.
Herling disagrees with this.
Teacher fired red hair = irrelevant consideration, so illegal
Teacher hired as bad at French and can emphasise with students, considerations have all been taken into account, but the weighting is irrational. So can only be irrationality.

Hierarchy - go for illegality first, then for irrationality.

Question 47

In which case was something truly irrational (my opinion) circumvented on grounds of policy?

Answer 47

Ex p Smith

Mod policy to not allow/remove gay servicemen. MoD said irrationality hurdle should be made higher on national security grounds. C said should be lowered on human rights grounds
Court didn’t remove the hurdle

Court said this issue was too sensitive - should be for Parliament to change.

Question 48

Three cases on proportionality? What is proportionality?

Answer 48

Use in cases where a FUNDAMENTAL RIGHT is being breached.
Does the end justify the means? Has collateral damage been minimised? (R(Daly))

Daly, Brind, Pegasus.

R (Daly)
Three factors for a proportionality claim IRN
1. Importance. Is the legislative objective sufficiently important to justify limiting a fundamental right?
2. Rational. Are the measures designed to achieve it rationally connected to it? Purpose.
3. Necessary. Are the means used to impair the right/freedom no more than is necessary to achieve the objective?

Ex p Brind
Ban on reports containing members of the IRA. Freedom of speech curtailed. Was proportionate.
Lordships rejected proportionality as a separate JR heading. Weird since they do this all the time in an into and EU context!

Ex p Pegasus
Revocation of Pegasus’ plane licence, they weren’t heard, court said was ok. Was a case of extreme circs - had to balance inconvenience against the magnitude of the risk (to customers).

Question 49

What is the test to use in typical cases vs macro socio-economic cases?

Answer 49

Typical - Wednesbury unreasonableness

Macro socio-economic - super-Wednesbury so vvv high threshold

Human rights - use propritionality

Question 50

What is the test to use in typical cases vs macro socio-economic cases?

Answer 50

Typical - Wednesbury unreasonableness

Macro socio-economic - super-Wednesbury so vvv high threshold

Human rights - use propritionality

Question 51

What is the test to use in typical cases vs macro socio-economic cases?

Answer 51

Typical - Wednesbury unreasonableness

Macro socio-economic - super-Wednesbury so vvv high threshold

Human rights - use propritionality