judicial review-procedure and remedies Flashcards
(22 cards)
What are the three preliminary issues in judicial review?
1) Permission, 2) Jurisdiction, 3) Justiciability.
Why are preliminary issues important?
They determine whether the court has the authority and capacity to review the decision in question.
What rule governs permission for judicial review in England and Wales?
Civil Procedure Rules Part 54.
What is the Scottish equivalent of CPR 54?
Chapter 58 of the Rules of the Court of Session.
What are the conditions for permission in Scotland (s.27B CSA 1988)?
Sufficient interest
Real prospect of success
Within 3 months (s.27A CSA 1988)
Where is jurisdiction for JR in England & Wales established?
Common law + Senior Courts Act 1981, s.29(1A)
What determines if the court has jurisdiction?
Source of decision-maker’s power (statutory or prerogative)
Nature of function (must be public)
Justiciability of the issue
Can prerogative powers be reviewed?
Yes, if justiciable – GCHQ case, Miller [2019].
Are any powers inherently immune from judicial review?
No – but some may be non-justiciable due to constitutional or institutional limitations (e.g. polycentric issues).
Example of non-justiciable prerogative power?
Dissolution of Parliament (but see Miller [2019] and note Dissolution and Calling of Parliament Act 2022).
What does “amenability” refer to?
Whether the decision or decision-maker is subject to judicial review.
What is the test for amenability in England & Wales?
Whether the function is public (CPR 54.1(2)(a); Datafin, Aston Cantlow).
What is the test for amenability in Scotland?
No public/private law distinction – see West v Secretary of State for Scotland [1992].
What is “standing” in judicial review?
Whether the claimant/petitioner has a sufficient interest to bring the case.
What is the standing test in England & Wales?
“Sufficient interest” (s.31(3) SCA 1981; IRC v NFSE).
What is the standing test in Scotland (post-AXA)?
Also “sufficient interest” (AXA v HM Advocate).
Can a public interest group have standing?
Yes, if acting in the public interest on a matter affecting a relevant section of the public (AXA, Lord Hope at [63]).
What is a key characteristic of remedies in JR?
They are discretionary.
Name 3 main remedies in England & Wales.
Quashing order
Prohibiting order
Mandatory order
What are other remedies available in England & Wales?
Declaration, injunction, damages (if otherwise available), declaration of incompatibility (HRA), and new prospective/suspending quashing orders under Judicial Review and Courts Act 2022.
What remedies are available in Scotland?
Reduction
Declarator
Suspension
Interdict
Implement
Restitution
Payment (damages or otherwise)
Who has discretion over remedies in Scotland?
The Lord Ordinary may grant, refuse, or conditionally order any remedy (Walton v Scottish Ministers).
