Judicial Review & Illegality (Semester 2) Flashcards
(93 cards)
1
Q
What is Judicial Review?
A
In the UK, a procedure by which a court can review an administrative action by a public body to secure a declaration, order or award.
- A dispute resolution, different to an appeal!
2
Q
What are the grounds of Judicial Review?
A
Lord Diplock simplified the grounds to:
- Illegality
- Irrationality
- Procedural Impropriety
They are malleable (can overlap).
3
Q
What is the primary function of JR?
A
To protect individuals from abuses of state power.
4
Q
How are the decisions of pubic bodies authorised?
A
- Statute (primary legislation)
- Prerogative (executive powers)
- The common law (e.g. contracting)
5
Q
What is an individual dispute?
A
Where a public body penalises an individual and the individual disputes the correctness of the decision in relation to the rules the body operates.
6
Q
What is a policy dispute?
A
Where there is a challenge to a general policy of a public body or a decision, which affects numerous individuals.
7
Q
What are the elements of JR?
A
- Part of the courts inherent jurisdiction
- JR is limited to legality, not the merits of a decision/policy
- Not meant to be a deep factual enquiry
- Remedies are discretionary/limited
8
Q
What are the two main theories of a judges role in JR?
A
- Ultra vires (the traditional view)
- The common law
9
Q
What are the arguments for reforming JR?
A
The governments case:
- Too many cases and too many without merit applications
- Too many campaigning organisations involved in bringing JR actions
- Cost to the public purse (because of legal aid)
- Slows government decision making down
10
Q
What are the arguments against reforming JR?
A
- It is factually incorrect - rules on standing are too wide and should be restricted/abandoned
- According to law, it is the value of government.
- It is a public access to justice
11
Q
What is the difference between an appeal and JR?
A
Appealing a decision by a public body:
- No general right to an appeal
- Established by statute
- Issues that can be decided depend on what the statute says
- Statutory appeals will often go to a specialist tribunal
- Remedies available depend on what the statute says
12
Q
What is Illegality?
A
Does the public body have the power to do this? If they don’t then their decision is unlawful.
“The decision maker must understand correctly the law that regulated his decision making power and must give effect to it” - Diplock
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
(The GCHQ Case)
13
Q
What is Procedural Impropriety?
A
Did the public body follow the correct procedure when taking the decision? Consultation, fair hearing, reasons and bias?
14
Q
What is abuse of discretion?
A
Has the public body exercised its discretionary powers unlawfully?
15
Q
What is Ultra Vires?
A
A public body acting “beyond their powers”.
16
Q
What is Intra Vires?
A
A public bodies actions within the boundaries of the power granted by the statutory provision.
17
Q
ILLEGALITY
Attorney-General v Fulham Corporation [1921] 1. CH. 440
A
- Case to illustrate where the decision-maker has misunderstood/misinterpreted the legal rules that govern the public body’s powers.
HOUSEHOLD PROBLEM SOLVED
- Council established a bath/house department for purpose of relieving housewives of laborious work.
- courts said couldn’t do this although no statute to support it
18
Q
Are all errors of law reviewable?
A
Yes. - Lord Reid
Anisminic v FCC [1969] 2 AC 147
19
Q
What is the post-anisminic (standard view) on Illegality?
A
The Post-Anisminic (standard view) is that all errors of law are jurisdictional, but courts are not always willing to intervene.
EXAMPLE:
R v Hull University Visitor, Ex p. Page [1993] AC 682
- University regulations so courts did not want to intervene
20
Q
ERRORS OF FACT: When are errors of fact reviewable?
A
E v Secretary of State for the Home Department [2004] QB 1044
- Courts are reluctant to JR based on facts (mistake of law rather than facts)
RULES (ALL MUST BE FULFILLED FOR JR ON FACT):
- Must be a mistake as to an existing fact
- Must be an uncontentious fact
- Applicant must not be culpable for mistake
- Mistake must have played material part in tribunals reasoning
(tough to satisfy)
21
Q
Why is procedural impropriety important?
A
- fair trials
- entitled to be treated fairly = more likely to lead to a better decision
- ensures all arguments and evidence are ventilated in public forum
22
Q
PROCEDURAL IMPROPRIETY: What is Consultation?
A
- getting views/opinions of those affected of decisions e.g. road works
- no requirement to consult before introducing primary legislation
23
Q
When is consultation required?
A
IF APPLICABLE:
- Statute
- Common law
- Explicit promise
- Practice of Consultation
- Impact of stopping is pressing/focused.
EXAMPLE
R v Liverpool Corp ex Part Liverpool Taxi Fleet [1972] 2 QB 299
- Didn’t consult, just added more licenses
COURT HELD: A requirement was needed (common law)
24
Q
What is a meaningful consultation?
A
R v Brent London Borough, ex p Gunning (1985) 84 LGR 168
Gunning/Sedley Criteria
1) Consultation must take place when the proposal is still at a formative stage
2) Sufficient reasons for proposal
3) Adequate time must be given for consideration and response
4) The product of consultation must be conscientiously taken into account.
25
What is the effect of a failure to consult?
R v Secretary of State for the Environment, ex p AMA [1986] 1 All ER 164
- Failure to consult over housing benefit regulations
- Found unlawful but relegations not quashed.
- Administrative inconvenience, not much point.
HELD: no remedy awarded, new regulations would be introduced soon.
REMEDY: QUASHING ORDER
26
PROCEDURAL IMPROPRIETY: Natural Justice
What does a fair hearing look like?
Ridge v Baldwin [1964] AC 40 - landmark judgement.
- notice of the charge against you
- time to organise a reply
- the right to put a reply
27
When is there a right to a fair hearing?
R (L) v West London Mental Health Trust [2014] EWCA Civ 47
- psycho man in hospital, moved to secure unit
- argument: is he safe?
HELD: unfair, - told day before his hearing, also wasn't allowed a solicitor, he needed to be kept aware
28
CONTENT OF A FAIR HEARING:
| Must the individual be given notice of the charge? (i.e. the information of the case against her/him)
Yes.
Lord Steyn
R v SS for the Home Department, ex p Anufrijeva [2003] UKHL 36
29
CONTENT OF A FAIR HEARING:
| Must the individual be given a hearing?
Yes.
30
CONTENT OF A FAIR HEARING:
| Does the hearing need to be an oral hearing, or can written representations be OK?
Lloyd v McMahon [1987] AC 625
There is no legal requirement for hearing to be oral.
Osborn v Parole Board [2014] AC 1115
Hearing before a parole board.
Circumstances where fairness may require an oral hearing e.g. no other way
31
CONTENT OF A FAIR HEARING:
| How long should the individual be given to prepare a response?
Lee v Department of Education and Science [1968] 66 LGR 211
- parents were given 3/4 days for school closure
HELD: wasn't long enough
32
CONTENT OF A FAIR HEARING:
| Does the individual need to be allowed legal representation?
R v SS for the Home Department, ex p Tarrant [1985] WB 251
- Matter of discretion. Need to consider:
1) Seriousness of charge/penalty
2) Points of law
3) Prisoners ability
4) Procedural difficulties
5) Speed
6) Fairness
33
CONTENT OF A FAIR HEARING:
| Does the individual need to be allowed to cross-examine witnesses?
- No. depends on circumstances.
R v Army Board of the Defence Council ex parte Anderson [1992] 1 QB 169
- Must not have an inflexible approach
34
CONTENT OF A FAIR HEARING:
| Can an unfair hearing be remedied by a fair appeal hearing?
Yes.
R ( on the application of A) v Kingsmead School (2002) EWCA Civ 1822
- an exclusion from school
Hearing 1 - school governors (unfair)
Hearing 2 - appeal panel (fair)
35
PROCEDURAL IMPROPRIETY:
| Is there a duty to give reasons?
Public Bodies are under no general duty to give reasons in common law.
Although Tribunals and Inquiries Act 1992, section 10 - requires a duty
36
PROCEDURAL IMPROPRIETY:
| To what extent has the common law moved towards accepting a general duty to give reasons?
Padfield v Ministry of Agriculture [1968] AC 997
Courts put in place an indirect requirement to give reasons, said they could have been given.
37
PROCEDURAL IMPROPRIETY:
| Cases where fairness requires a duty to give reasons?
Doody v Home Secretary [1993] 3 All ER 92
- life sentence for murder, risk element, no reasons given by SS
- no general rule although unfair under circumstances
- reasons needed to challenge decisions
Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71
"In general, they should be given unless there is a proper justification for not doing so" - Elias LJ
38
PROCEDURAL IMPROPRIETY:
| What counts as adequate reasons?
Re Poyser and Mills Arbitration [1964] 2 WB 467
"proper, intelligible and deal with the substantial points which have been raised"
39
PROCEDURAL IMPROPRIETY:
| What is the effect of failure to give adequate reasons?
- None
- Still no general duty to give reasons
- May be a duty in exceptional circumstances
- Policing of obligation variable
40
What are Lord Reid's three landmark cases surrounding JR?
- Anisminic
- Ridge v Baldwin
- Padfield
These judgements show the courts much bolder in holding decision-makers in public bodies to account.
REMEMBER THEM GUYS!!
41
What are the three types of bias?
- Actual (very rare) - no cases but be aware
- Automatic disqualification (pecuniary and non-pecuniary interests)
- Apparent bias
42
What is automatic disqualifying bias?
When the judge is shown to have an interest in the outcome of the case which s/he is to decide or has decided the existence of bias is presumed.
Dimes v Grand Junction Canal (1852) - judge had a financial interest in outcome of case.
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No 2) - non-pecuniary, widened bias, party in own cause
43
What is apparent bias?
The question is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
44
APPARENT BIAS:
| The Porter v Magill test in practise?
Lawal v Northern Spirit (2004)
- Employment Appeals Tribunal, chair of lay memebers
- Can they appear as counsel before another lay member?
- N0. = apparent bias
undermines confidence in administration in justice.
45
What is the test for apparent bias?
Porter v Magill [2002] 2 AC 357
- This judgement sets the framework of the present law.
- (overruled R v Gough)
The question is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
46
APPARENT BIAS:
| What if the decision is not a judicial decision?
Franklin v Minister of Town and Country Planning [1948]
- sitting of new town at stevenage
- inspector reports to minister
- is minister biased?
HOL: no. reference to bias is out of place in context.
47
FAILURE TO EXERCISE DISCRETION:
| What is unlawful delegation?
- If statute entrusts a public body/individual with a discretionary power, that body/individual must exercise the discretion. The discretion may not be delegated (i.e. given) to a different body/individual. It would not be in accordance with what Parliament intended.
48
DELEGATION:
| What is the Carltona principle?
Carltona v Commissioner of Works [1943]
- the courts have recognised the need for some flexibility
- thus, delegation within a department is ok
49
DELEGATION:
| The Carltona principle in practise?
R v Secretary of State for the Home Department, ex p Oladehinde [1991]
- deportation decisions delegated to officers in Home Office
50
DELEGATION:
| Examples of legislation/Parliament authorising delegation:
Local Government Act 1972, section 101
Deregulation and Contracting Out Act 1994, Part II
51
What is acting under dictation/fettering discretion?
Where legislation gives a public authority discretion to make decisions
- Different to taking views into account, simply being dictated to do something
Lavender v Minister of Housing and Local Government [1970]
- planning permission to use quarry for gravel
- Min Agriculture opposed
- Local Gov to decide although won't allow if Min Agriculture opposed.
52
Cases of fettering discretion by self-created rules of policy?
British Oxygen v Board of Trade [1971] AC 610
- power to make grants, no grants given for plants less than £20
- okay to have a policy
- although must not shut ears to application, can allow exceptions!!
- if policy is a 'bad one' then must be changed
53
ABUSE OF DISCRETION:
| What does it mean to act for an improper purpose (bad faith)?
APP v Wednesbury [1948]
- This is where the public agency has not considered the decision properly e.g. placed the wrong weight on certain factors.
Derbyshire v Times Supplements [11991]
- D withdrew advertising from TES on educational grounds.
- Decision was actually found to punish Times (said the judge)
- Criticism of leadership of Derbyshire CC = bad faith (lying)
54
What is irrationality?
- If a decision is so unreasonable (based on substance), courts can interfere.
- Challenge to the merits (controversial) as JR not based on merits
55
What is the irrationality test?
Wednesbury test:
"a decision so unreasonable that no reasonable authority could have ever came to it"
56
What are the problems with the Wednesbury (irrational) test?
- statement of conclusion: not a test
- unpredictable outcomes
- doesn't provide a framework - how do you decide what is unreasonable? criteria?
- doesn't deal w intensity of review
57
Is Wednesbury dead?
ABCIFER - No.
- may not like the test but still remains, up to the SC to interpret it.
- perhaps moving towards proportionality rather than irrationality?
58
What is proportionality?
- An alternative to irrationality is proportionality
- Only Used in EU, HRA and ECHR case law
- Used in cases where Wednesbury isn't used
59
What is the difference between proportionality and irrationality (Wednesbury)?
- intensity of review of proportionality cases is greater than wednesbury
- p requires assessment of balance the decision maker has struck
- p requires affection to relative weight accorded to interests & considerations
- heightened scrutiny (irrationality) is not enough for human rights cases
- P is not merits review (arguably)
60
What is the current test for proportionality?
MELLAT (NO 2)
1) Whether its objective is sufficiently important to justify the limitation of a fundamental right.
2) Whether it is rationally connected to the objective
3) Whether a less intrusive measure could not have been used
4) Whether a fair balance has been struck between the rights of the individual and the interests of the community
NB: WHERE ONE ELEMENT FAILS, WHOLE TEST FOR P FAILS
61
Irrationality (wednesbury) v proportionality?
Pham v SS of Home Department
HELD: No distinction between I & P
P = more structured
Applying Wednesbury depends on context.
Under common law, courts undertake balancing exercise
62
What is the concept of legitimate expectations?
If public authorities make promises, they should stick to it.
To what extent must it do so?
- similar to estoppel in contract
- the promise must be lawful
EXAM TIP: in a problem question, if it seems to be a promise or representation then it's usually legitimate expectations x
63
What are the conditions to establish legitimate expectation?
1) Representation
2) To a defined group - easier when smaller
3) Detrimental reliance?
4) No overriding public interest at stake
64
LEGITIMATE EXPECTATIONS:
| What are the different types of representation?
1) Promise (Coughlan case)
2) Standard form letter (Khan case)
3) Practice (GCHQ case) e.g. cannot change your mind, give notice
4) Must be unequivocal (Wheeler case)
65
LEGITIMATE EXPECTATIONS:
| What is detrimental reliance?
Have you acted in a way that put you at a disadvantage because of the promise or representation made?
e.g. Khan - arranged family life based on son moving country (asylum seeking)
66
LEGITIMATE EXPECTATIONS:
| Can moral reliance sometimes be used in place of detrimental reliance?
Yes.
| BIBI - reliance without concrete detriment (hadn't changed circumstances/position) but court said was morally right (MR)
67
LEGITIMATE EXPECTATIONS:
| What is the concept of public interest?
There must be no overriding negative public interest at stake when establishing a legitimate expectation, e.g:
- US Tobacco case: wanted to sell in UK, gov said no as moral commitment to a single US company should not prevail over public interest.
NADARAJA case: departure from policy.
There are opportunities for pubic bodies to escape promises for sufficiently compelling public interest (get out clause)
68
What case suggests prerogative power is judicially reviewable?
Laker Airways [1977]
GCHQ Case
69
What categories are not for courts (non-justiciable)?
- making of treaties,
- the defence of the realm, cant imagine court reviewing on whether to start a war etc. not a legal question
- the prerogative of mercy, giving people, decide reasons why sentence should not be honoured, not JR, cannot review another courts decision
- the grant of honours - COURTS CANT DECIDE ON GIVING HONOURS TO PEOPLE, NOT THEIR PLACE.
- the dissolution of Parliament (but Fixed Term Parliaments Act)
- appointment of ministers – crown chooses who he/she wants
70
What are the conclusions/significance about the Bancoult case(s) surrounding prerogative powers?
- Prerogative is reviewable
- Note also “third source” power
- First step is scope of power - Miller
- Certain issues not reviewable (non-justiciable)
- Intensity of review varies with subject matter
71
What are the rules on remedies?
- Civil Procedure Rules Part 54
- Senior Courts Act s. 31
a ‘claim for judicial review’ means a claim to review the lawfulness of –
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a public function.
72
What is the outline procedure for JR?
- Pre-action protocol
Claim form submitted must include
- a detailed statement of the claimant’s grounds for bringing the claim for judicial review;
- a statement of the facts relied on;
- any application to extend the time limit for filing the claim form;
- any application for directions.
Served on defendant
Court must grant permission to proceed – generally without a hearing
73
What remedies are available in a JR claim?
- Quashing Order/Prohibiting Order
- Mandatory Order
- Declaration
- Injunction
- Other Remedies
- Tort Liability of Public Authorities
74
Who has standing to bring a JR claim?
Senior Courts Act 1981, s. 31(3): “No application for judicial review shall be made unless [the court] considers that the applicant has a sufficient interest in the matter to which the application relates”
- ONLY THOSE WHO ARE DIRECTLY AFFECTED (GENERAL RULE)
75
REMEDIES:
| Significance of Nat Fed of Self-Employed (Mickey Mouse case)?
House of Lords split 3-2
Majority – no sufficient interest
Minority – sufficient interest, but no merits (Diplock clearest)
Key point that standing cannot be divorced from application – not a preliminary independent issue
Beginning of more liberal approach
76
REMEDIES:
| What are the rules on the time limits in which a JR claim can be filed?
The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose.
(2) The time limit in this rule may not be extended by agreement between the parties.
77
REMEDIES:
| What are the consequences of time limits for a claim?
When does time start?
Promptly and within 3 months separate requirements
Applications within 3 months not necessarily prompt
If not prompt, and within 3 months, permission can be refused
If not prompt, and within 3 months then this “undue delay”
Consider hardship to third parties
Detriment to good administration
78
PUBLIC/PRIVATE DISTINCTION
Significance of O’Reilly v Mackman case?
Riot in Hull prison – challenge to decisions by writ, not judicial review
Diplock – disadvantages of old procedures for applicants have been removed
Procedure provides protection for public authorities
Leave needed
Short time limits
NB: IF CHALLENGING A PUBLIC BODY THEN IT HAS TO BE A JR CLAIM!
79
General idea on public/private distinction?
Courts taken pragmatic view of procedural exclusivity
Issue of public body turns on perception of “publicness” of activity
More difficulty with contracted out services
Overall, JR claims can only be brought in on public bodies unless a private body is performing an act which is public/governmental in nature. If neither apply, then a JR claim can't occur.
80
What is exclusion of JR?
General presumption against the exclusion of judicial review
“It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words.”
Tension with Parliamentary sovereignty
81
4 ways of excluding JR?
Total ouster
Time limit clause
Conclusive evidence clause
Alternative tribunal
82
TOTAL OUSTER:
| Anisminic?
Decision of who was "successor in title"
HELD - cannot be decided in any court of law, NOT GOING TO BE REVIEWED
HL Majority (3-2) that FCC wrong in interpretation of “successor in title”
This was an error of law
Therefore decision a nullity and, since not a decision, not protected by ouster clause
Suggested that ouster clauses ineffective
But this is misleading
83
TIME LIMITS:
| Ostler
- sympathetic case on time limits
Different from Anisminic:
Anis. total ouster, this is time limit
Anis. was judicial body, here administrative
Anis. considered actual determination, here validity of process
Decision here not void, but voidable
Therefore JR must fail, EXCLUDED
84
What is an Ombudsman? More focusing on Parliamentary Ombudsman than private.
- Comes from Sweden
- Person who solves citizens complaints, attempts to improve administration of justice
- appointed by crown, not aa civil servant
- reports to HoC
- examined by Public Administration Committee
85
Role of the Ombudsman?
"The Commissioner may investigate any action taken by or on behalf of a government department or other authority to which this Act applies [Schedule 2], being action taken in the exercise of administrative functions of that department or authority by a member of the public who claims to have sustained injustice in consequence of maladministration in England."
86
Limits on jurisdiction (Ombudsman)?
No action where
- Right of appeal to tribunal
- Right of action in court of law
Unless not reasonable to expect them to take it up
87
What can the Ombudsman not investigate on? (Schedule 3)
International relations e.g. chagos island
Commercial or contractual matters
Award of honours
Action authorised by SS for investigating crime or security of state
Court proceedings
88
What is the procedure of the Ombudsman?
Complaints must be made to your MP, who then passes it onto PCA
Investigation by PCA
Issues a report
Remedy is not binding on Department, don't have to listen
89
Reasons for jurisdiction becoming enlarged?
Removal of MP filter
| Removal of some bars - barriers
90
Future Ombudsman proposals?
```
Abolish MP filter
Allow telephone, e-mail complaints
Own initiative investigations
Oversee complaint handling
Single public services Ombudsman for England
```
91
What are the wishes of the Ombudsman?
One Public Ombudsman service
Dual track – can go to ombudsman directly or MP (choose what u want to do)
Own initiative investigations
92
What are the wishes of the government for the Ombudsman?
Parliamentary and Health Service Ombudsman combined with Local Government Ombudsman
No “wrong door” approach
Minded to go for dual track approach re MP filter
Champion improvements in complaint handling
```
Investigative tools
Joint investigations
Widen investigation to cover similar cases
Share reports
But not own initiative investigations
```
93
Ombudsman - Bradley case?
Judicial review of government’s rejection
CA – Minister can reject finding of maladministration
Can only reject finding if has
a reason, other than disagreement, for this.
(When ombudsman MP has referred back to parl/PCA)
