Judicial Review: Grounds of Challenge (Legality, procedural fairness, reasonableness & proportionality)

Question 1

What are the four core principles in judicial review?

Answer 1

1. Legality
   * Decisions must be taken in accordance with the law (statutory and common)
2. Procedural fairness
   * Concerns instances where the decision may have an adverse impact on individuals
3. Unreasonableness
   * Ordinary person test.
   * Would a reasonable person given the same circumstances have arrived at the same conclusion as the decision maker.
4. Proportionality
   * Decision maker has gone further than is necessary to elicit an effect.
   * Infringes on one’s rights without justification or in pursuit of a legitimate aim.

Question 2

When interpreting statutes, what are the three questions the court will consider?

Answer 2

Question 1: Can they, do it?
* Jurisdictional question
* Should a statute allow the minister to determine whether or not a major infrastructure project should be allowed, and the minister commissions the construction of a prison, this would directly contradict the powers granted by the statute, thereby beyond the competence of the minister.

Question 2: What does the wording mean
* Once the court determines the meaning of the wording they will then consider the below question.

Law and Fact (Legality)

Question 3: Does the proposition of the minister meet the definition as outlined in
the statute
* Should the minister decide to allow the construction of a major airport, the court would question whether an airport falls within the powers granted in the statute
* This questions the meaning of ‘major infrastructure’.

Question 3

What is the distinction between error of law and errors of fact.

Answer 3

• This highlights the distinction between questions of law and questions of fact.
• Questions of law are highly subjective and therefore justiciable by the court, as shown in Page.
• For instance, a question of law would include the meaning of ‘major infrastructure project’
• However, contrary to questions of law, questions of fact are out with the competence of the court.
• Questions of fact include, the environmental impact of the airport, the size, the economic output etc.
• All of the above have a definitive answer and therefore it is not necessary for the court to provide their own interpretation.

Question 4

Why are errors of law considered to be within the institutional competence of the court? (2).

Answer 4

• Errors of facts concerns competing interpretations of the same text or term, therefore being legal professionals, the court is best placed to determine the correct interpretation, however
• In circumstances where a term is vague, the court simply impose its own view
• The court will only do so where the definition of the term submitted by a party is unreasonable.
• Furthermore, the judicial independence puts the court in a unique position which allows them to interpret a term or text impartially and independently.

Question 5

Which case highlights the distinction between errors of law and errors of fact.

Answer 5

R(A) v Croydon LBC

• Highlights the distinction between an error of law and an error of fact. When determining whether an individual was entitled to social housing, the court was asked to interpret the provision stating ‘children in need’ should be entitled to housing.
• There was a question of fact as to the age of the child, and therefore whether the qualified for social housing under the statute.
• There was a question of law as to what ‘in need’ is to be defined as.

Question 6

What are the three primary components of procedural fairness?

Answer 6

Impartiality

Independence.

Legitimare expectation.

Question 7

Provide the advantages of procedural fairness in judicial proceedings. (2).

Answer 7

Features of procedural fairness like public hearings like public hearings furthers the ministers understanding of the issue and is likely to influence decision making.

Recognises individual dignity, autonomy and independence.

Question 8

Define impartiality.

Answer 8

Decision maker must not be bias/have a conflict of interest

Question 9

What is the consequence of a lack of impartiality?

Answer 9

The consequence of a lack of impartiality is the undermining of confidence in the decision-making system.

Question 10

What are the three primary subprincipals of impartiality?

Answer 10

• ‘A man may not be a judge in his own cause’
• Financial improprieties
• Other interests

Question 11

Which case highlights legitimate expectation, by means of a promise from a public authority.

Answer 11

• Coughlan.

Question 12

Which case highlights a lack of impartiality?

Answer 12

• E.g. Pinnoche no. 2: In a 2-3 decision the Supreme Court allowed the extradition of Chilean dictator Augusto Pinnoche to Spain to be tried, however
• It was later found that Lord Hoffman had been a stakeholder in the charity Amnesty International, a party to the decision.
• However, commentators have suggested that the fallout from Pinnoche no.2 has created a form of defensive practice in which legal professionals and laypeople are hesitant to participate in public life for fear of being caught up in scandal

Question 13

Which section of the ECHR guarantees an independent adjudicator?

Answer 13

Article 6(1).

Question 14

What is the notable issue with applying Art 6?

Answer 14

• However, note that the article ONLY provides for civil rights and obligations and criminal charges.
• What then of tax disputes, or immigration tribunals?
• There have been instances in which Article 6 (1) has been disengaged, or better yet, disapplied, most notably in a housing dispute.

Question 15

When considering whether an action should be heard, what are the two considerations?

Answer 15

The implication of the decision on the individual and the practical need for formal procedure.

Question 16

Does procedural fairness vary according to the severity of the issue before the court?

Answer 16

Yes.

• Losing your home, to be replaced by a new runway for an airport is more deserving of procedural fairness than an application for an extension on a house.

Question 17

What are the two contrasting cases relevant to the right to be heard by the court?

Answer 17

Osbourne and Lloyd v McMahone

Question 18

Describe the events and outcome of Osbourne.

Answer 18

• Prisoner released from their custodial sentence on licence and broke the terms of their release
• Remanded to prison without an oral hearing
• It was determined that they should have been entitled to an oral hearing therefore the actions of the prison service were wrongful.

Question 19

Describe the events and outcome of Llody v McMahone

Answer 19

• A number of Liverpool City Councillors found personally liable for financial losses of the council
• Councillors ordered to pay back that which was lost, and were banned from running for a period of five years
• Councillors appealed suggesting that they were entitled to an oral hearing
• Oral hearing was denied, sighting that the submission of documentary evidence was sufficient.

Question 20

However, while procedural fairness varies according to the risk associated with it, there remains a number of procedures which are necessary. (3).

Answer 20

• Giving notice
• Giving reasons for decision
• s10 of the Tribunals and Inquires Act 1992
• Freedom of Information Act 2000
• Art 6 (1) ECHR
• Where Art 6 is imposed there arises a number of duties.
• Reasonable expectation
• Established practice

Question 21

When the court provides its reasoning what must the reasoning include?

Answer 21

• Reasons given must be proper, adequate and intelligible
• Reasons given must address all substantial points raised in parties’ submissions
• However, here lies reasonable responsibility as the court are not under obligation to provide justification for their decision on al aspects of the submission.

Question 22

What is meant by the exercise of discretion.

Answer 22

• Where a power is granted to a minister it is expected that the minister and no other actor will exercise that power

Question 23

What are the three reasons why when a statute has allowed a minister power, it must only be those expressly outlined that exercise that power?

Answer 23

• Parliamentary intention: Parliaments will that the individual prescribed be given that power and nobody else.
• Institutionally qualified: Expert in the relevant field.
• Ensures accountability: Should something go wrong there is only one person to blame.

Question 24

Which case highlights the exercise of discretion.

Answer 24

• Gerry Adams case
• However, this has raised a number of questions concerning the Carltona principle and its relevancy following the Adams judgement
• Some have suggested that as opposed to acting a delegate, civil servants operate as an extension of the minister.

Question 25

What are the two limiting principles of the Carltona principle?

Answer 25

* The delegation of power may only be to those with the appropriate seniority having regard for the power granted * Must be properly qualified to make judgement

Question 26

What are the two primary components in legitimate expectation?

Answer 26

Promises and standard practice.

Question 27

When a public body makes a decision despite contrary past practice, what two things must the public body do to ensure procedural fairness.

Answer 27

1. Give sufficient reasoning for the decision 2. Provide an opportunity for the wronged party to comment.

Question 28

Which case highlights legitimate expectation?

Answer 28

GCHQ.

Question 29

What are the two circumstances under which a public body can depart from standard practice?

Answer 29

1. Where it is proportionate, and 2. Where the public body has a duty to do so.

Question 30

When a public body makes a promise, what conditions are attached?

Answer 30

1. Must be clear and unambiguous. 2. Wronged party must have knowledge of the statement.

Question 31

Which case highlights the unreasonableness doctrine?

Answer 31

Wednesday.

Question 32

Describe the unreasonableness doctrine.

Answer 32

* Courts will only provide judgement in circumstances where the rationality of the decision-maker is so unreasonable that no reasonable authority could have reached it. * Irrationality and illogical and beyond the range of reasonable responses. * E.g. a school dismissing a teacher because of their red hair. (Lord Greene) * ‘In defiance of logic or moral standards (Lord Diplock)

Question 33

With reference to varying standards of justification according to the severity of the infringement upon ones rights, what did Lord Bingham say?

Answer 33

The more substantial the interference the more the court will require by was of Justification

Question 34

Which case highlights the distinction between proportionality and unreasonableness?

Answer 34

Smith.

Question 35

With reference to the conflicting principles of proportionality and unreasonableness, describe the events and outcome of Smith.

Answer 35

* The government suggested that the presence of gay and lesbian personal would undermine the morale and effectiveness of the armed forces, however opponents suggested that this rested firmly on the supposition of prejudice. * The court recognised the decision of the government was wrong but not strictly unreasonable and thus out with the courts ability to provide an effective remedy. * Whereas in Smith the court was unable to provide an effective remedy because speaking strictly the reasoning of the government wasn’t wholly illogical or beyond reason, adopting the proportionality test would elicit a different effect. * Within this we can show that: * Article 8, the right to a private life, was infringed upon * The legitimate pursuit by the government was the preservation of national security as outline in Article 8 (2). * The court then posed the question is an outright ban on gay and lesbian personal necessary in order to preserve national security as opposed to less draconian means, such as adequate conduct supervision. * The court in this circumstances would favour the appellant.

Question 36

Identify the four features of the proportionality test.

Answer 36

1. Has a protected interest been compromised? 2. Was it in the pursuit of a legitimate aim? 3. Was it necessary to compromise on the pursuit of the legitimate aim? 4. Is there an adequate relationship of proportionality in the narrow sense?

Question 37

What are the two primary distinctions between proportionality and unreasonableness?

Answer 37

Proportionality differs from the doctrine of unreasonableness in two primary ways: The intensity of the review and The fact the proportionality test provides a more structured criteria than the unreasonableness doctrine.

Question 38

Which case contrast Smith?

Answer 38

Behavin concerned a porn shop submitting to the court that their freedom of expression had be unjustifiably unfrindged upon

Question 39

What concerns to some commentators have with the proportionality test becoming more popular among the judgments in domestic courts?

Answer 39

* Some have argued that proportionality test is out with the jurisdiction of the court as it attempts to replace the role of the decision-maker, thereby blurring the lines between appeal and review.

Question 40

The proportionality test has always been a feature of UK Judicial Proceedings. (T/F)

Answer 40

False. * Initially the proportionality test was only administered in circumstances were human rights were concerned however this has since been expanded to include cases out with human rights * This change followed the incorporation of the ECHR into domestic law through the HRA 1998.

Question 41

Opponents of the view that the scope of the proportionality test is too broad point to a feature which limits its application.

Answer 41

* Deference * Occurs when a court refuses to determine whether a decision is unlawful * Some view this as a dereliction of duty * Opponents to this perception of difference suggests simply that the court recognises the weight and respect to the decision maker and are thereby less likely to interfere.

Question 42

What are the two manners in which deference operates?

Answer 42

* Where the court doesn’t have the necessary relative institutional competence to judge * See Nicolson. * There is an adequate relationship of proportionality * See Carlile.

Question 43

Which is more popular among modern judgements the application of the unreasonableness doctrine, or the proportionality test?

Answer 43

* Legal commentators agree Wednesday has fallen out of favour in domestic courts, in favour of the proportionality test, however this isn’t to say that Wednesday is irrelevant. * Some have suggested that while lower courts tend to use the proportionality test more often than not, the House of Lords/Supreme Court must administer the last rites.

Question 44

Which (now) former Supreme Court judge notably administered the unreasonableness doctrine in a rigid fashion in their dissenting judgement?

Answer 44

Lady Hale.

Question 45

Where did proportionality originate?

Answer 45

Mainland Europe.

Question 46

Who said 'context is everything' ?

Answer 46

Lord Dale.

Question 47

Is the proportionality test administered solely in cases concerning human rights?

Answer 47

No. More recently the proportionality test has been applied in more broader circumstances than simply just human rights.

Question 48

Does the application of the proportionality test more broadly support the proposition that the UK continues to move toward legal forms of accountability mechanisms as opposed to political accountability mechanisms?

Answer 48

Yes.