Judicial Review: Scope, procedure and remedies Flashcards
When considering the prospect of an ouster clause prohibiting the interference of judicial review, which two cases are pertinent to the discussion?
Anisminic and privacy international.
Describe the events and outcome of anisminic.
- Imposed an ouster clause
- Sovereignty of Parliament and the Rule of Law in conflict with one another
- Rule of Law implies that people should have legal disputes settled by an independent, impartial and competent court.
- Wording of the particular statute favouring the application of the Rule of Law as opposed to favouring the sovereignty of parliament.
- Unique case due to confusing wording of the provision.
Describe the events and outcome of privacy international.
- Again, imposed an ouster clause
- Court ruled that the statute prohibited the judicial review of the substantive statutory features, but DID NOT prohibit the judicial review of unlawful decisions
- Only the courts can determine the limits set by the Rule of Law
- Should the court impose an absolute ouster clause, justiciary would be willing to rebel
- Overall, ouster clauses tend to undermine the Rule of Law.
Miller I
Prerogative powers declared not to be wide enough to allow the executive to trigger article 50 without the consent of Parliament (Favouring application of the Sovereignty of Parliament principle)
Miller II
Prerogative powers declared not be wide enough to allow the executive to prorogue parliament in the immediate run up to the withdrawal from the European Union, however this isn’t to say that this judgement put a blanket ban on the proroguing of parliament.
Traditionally, it is constitutionally improper to interfere with prerogative power. (T/F)
True.
GCHQ case.
Established the prerogative powers are justiciable
- Employment traditionally necessitates consultation with the public, therefore exec cannot impose its will in this regard.
Provide examples of prerogative powers which aren’t justiciable.
Honours, foreign policy etc.
Why are declarations of war considered beyond the reach of the court?
Declarations of war considered not to be in the reach of judicial review not because declarations cannot be considered unlawful but its practically difficult to reverse a declaration of war.
Define de facto powers.
Power that the decision maker possess although there’s nothing expressly to say that they possess those powers
What does the likihood of judicial review of de facto powers vary according to?
Relationship between the decision and the government.
Which three cases are pertinent when considering the justiciability of de facto powers.
- Use of public money to fund pensions without the basis of a statutory regime (Hooper)
- Regulation of takeovers and mergers by a regulatory body (Datafin) (IMPORTANT)
- Disciplinary decisions taken by a jockey club in relations to horse racing (Aga Kahn)
Describe the events and outcome of Datafin
- Claimant and company X attempting to take over company Y
- Claimant complained that X were in breach of regulations as outlined by the relevant regulatory board
- While the board dismissed, he claim, the decision was judicially reviewed
- The board had no statutory foundation, and therefore the question was raised as to whether the actions of the board could be reviewed by judicial review
- This question was answered in the affirmative with the court allowing the challenge
- This highlights that public bodies without strict statutory backing and an inability to exercise any legal powers are still subject to judicial review
- This addresses the ability of the court to review the actions of self-regulatory bodies.
Describe the test to determine whether de facto powers are justifiable.
- Was the defendant not already performing the function?
- Were the defendant not to exercise their power, would the government need to intervene to perform the power themselves?
Briefly explain the events of Hooper.
- Despite lacking a statutory basis the minister failed to exercise his duty.
Briefly explain the events of Aga Khan.
Failing to admit a roided up horse was not juridically reviewable. (Too far removed from the powers of government).
Discuss the justiciability of contracts
- Judicial review tends not to apply where contracts exist.
- Supports proposition that contractual agreements are a private matter and thereby not subject to judicial review.
- This includes governmental contracts. (Goldsmith).
What is the consderations to determine whether a case is justiciable in Scots Law.
- Who conferred the power?
- Who exercised it?
- Who is the person affected by the power?
Where can the basis for the procedure of judicial review be found?
Part 54 of the Civil Procedure Rules
In which period was there considerable reform of judicial review?
1977-81
What are the three distinctions between judicial review procedure and that of ordinary procedure.
- Additional protections for respondents
- Respondents generally public authorities.
- Courts are less inclined to penalise public authorities as any penalties ultimately will come out of the public purse.
What are the the three limitations which are considered to put the challenger in a disposition?
- Litigants must secure permission of the court in order to launch a judicial review challenge
- Two stage process exercised
- Permission must be sought
- Substantive proceedings, which hear the substance of he issue presented
- Filters unmeritous claims
- Public interest question asked
- Claimants are generally expected to take various steps before seeking judicial review
- Mediation, and
- Exhaust all available remedies first
- Must act quicky
- Three month prescription, beginning once the decision is made
- Courts have the discretion to extend the prescription, however there must be ‘good reason’
Even where there is good reason for an extension of the prescription of a case, for what two reasons may the court refuse to grant an extension?
- Even in instances where there is good reason, the court may refuse, if it would be detrimental to good administration
- Extensions may additionally be refused id it is likely to cause substantial hardship to one of both of the parties
- E.g. Residents challenge the decision of the Home Secretary to build an airport, where the flight path goes over their properties. However, the residents apply four months after the decision is made. The court will likely not allow an extension for fear it would cause substantial hardship to the contractors enlisted to build the airport.
Which Act outlines the standing necessary to bring a challenge.
Senior Courts Act 1981.
