Lecture 26: Procedure and Remedies Flashcards
What are the preliminary issues to consider in judicial review?
The three preliminary issues to consider are:
Permission - Courts have discretion to grant or refuse permission for judicial review.
Jurisdiction - The court must determine whether it has the authority to hear the case.
Justiciability - The court assesses whether the issue is suitable for judicial review based on its constitutional role and capacity.
What is required for permission to judicial review in England and Wales?
Permission is granted if:
The claim is arguable and has a reasonable chance of success.
The claim is made within the 3-month time limit.
The claimant has sufficient interest in the matter.
All other avenues of redress have been exhausted.
The court considers that if successful, the claim would make a difference to the claimant.
What are the rules for judicial review permission in Scotland?
In Scotland, permission is required from the Court of Session and will be granted if:
The applicant has sufficient interest.
The application has a real prospect of success, meaning the grounds for review are not frivolous.
What is the jurisdiction for judicial review in England and Wales?
In England and Wales, judicial review is founded in common law but may be restricted by statute. The High Court has jurisdiction to issue orders such as mandamus, prohibition, and certiorari. The jurisdiction is determined by the source of the decision-maker’s authority, whether from statute or prerogative powers.
What is the jurisdiction for judicial review in Scotland?
In Scotland, the Court of Session has supervisory jurisdiction to ensure that decisions made by bodies with delegated powers do not exceed or abuse their jurisdiction, power, or authority. The court’s supervisory function applies without distinguishing between public or private law.
What type of legislation is not reviewable by courts in either England & Wales or Scotland?
Primary legislation passed by the UK Parliament (Westminster) is not reviewable by courts in either England & Wales or Scotland.
What types of decisions or powers can be reviewed by courts in England & Wales?
Courts in England & Wales can review:
The exercise of public functions, including statutory powers and most royal prerogative powers (excluding personal prerogatives and dissolution of Parliament), and
The exercise of de facto public functions (i.e., public in nature though performed by private actors), and
Delegated legislation.
What types of decisions or powers can be reviewed by courts in Scotland?
Courts in Scotland can review:
Acts of the Scottish Parliament (for legal competence),
The exercise of public functions (statutory, prerogative—excluding personal powers and dissolution of Parliament—and de facto public functions),
Delegated legislation.
What is justiciability in judicial review?
Justiciability refers to whether a case is suitable for judicial review. Courts will review statutory, common law, or prerogative powers, except where the issue is not within the courts’ capacity or if it involves matters that are political or involve broad public policy considerations.
What is the difference in amenability to review between England and Wales and Scotland?
In England and Wales, judicial review is limited to public functions, with a distinction made between public and private bodies.
In Scotland, there is no distinction between public and private law, and judicial review can apply to a broader range of decisions, regardless of whether they are public or private.
What does standing mean in judicial review?
Standing refers to whether an individual has the right to bring a claim in judicial review. In both England and Wales and Scotland, the applicant must show sufficient interest in the matter being reviewed. A person acting in the public interest may not need to show personal interest.
What remedies are available in judicial review in England and Wales?
Remedies include:
Quashing orders, where a decision is invalid.
Prohibiting orders, which stop a decision-maker from acting beyond their powers.
Mandating orders, requiring action to be taken.
Declarations, clarifying legal rights.
Injunctions to prevent unlawful actions.
Damages, only if available in non-judicial review proceedings.
What remedies are available in judicial review in Scotland?
Remedies in Scotland include:
Reduction (quashing or rescinding decisions).
Declarator (clarifying rights).
Suspension (stopping an action).
Interdict (similar to an injunction).
Restitution (restoring the status quo).
Payment, including damages or compensation.
